Research Paper
‘Toyota Salesman Claims Racist Boss Called Him A Curry Muncher’
The Sydney Morning Herald’s publication of the facts surrounding a ‘Toyota Salesman’ exposure to a toxic workplace culture raises questions about the application of the universal right to a safe working environment. This research paper will examine the applicability of the Equal Opportunity Act 2010 (Vic) , Work Health & Safety Act 2011 (Cth) and Occupational Health & Safety Act 2004 (Vic) in the provision of this right. Specifically, is a remedy available to the complainant on the basis of workplace discrimination or bullying? And could Toyota be held vicariously liable for the contravention of the respective Acts? When considering the complainant’s exposure …show more content…
For example, under the Disability Discrimination Act 1992 (Cth) a comparison between a disabled person and someone without a disability, the comparator, in the same material circumstance, was used to determine unfavourable treatment. Toohey J accepted this legal test and applied it in the case of IW v City of Perth. However, Legislators did not intent for this method of determination to be applied under the EOA. According to Parliament, this because it is inherently problematic to find an appropriate comparator and technicalities surround material differences. Rather, the approach adopted in the case of Prezzi v Discrimination Commissioner & Anor is more applicable to the Act, where ‘unfavourable’ was simply given its ordinary meaning rather than the implied use of a comparison. From this perspective, ‘unfavourable treatment’ may be articulated as a detrimental outcome, in dealings with another, due to a protected attribute. In the Toyota Case the complainant now suffers from depression and anxiety due to repeated racial degradation, resulting in being medically certified as unfit to attend work. In Laverdure v Jayco Caravan (Recreational Industries) Pty Ltd & Anor racial comments made in the workplace, a public arena, were deemed to be unfavourable, akin to the Toyota Case. For these reasons, the complainant fits the characteristics of being …show more content…
That is, WorkSafe’s failure to include the evidence of the witness means a ‘detriment’ could not be established and thus the employer could not be found vicariously liable under s 109. This raises the question of whether the complainant afforded procedural fairness. In McCauley v Club Resort Holdings Pty Ltd the company was held liable for the procedural irregularities of a botched discrimination investigation, albeit in a different jurisdiction. With this in mind, it is possible that Toyota will be found liable for the racial discrimination, as they did not act ‘reasonably’ in their response or investigation. The allocation of damages and loss of income will not be discussed due to their procedural, rather than legal,
‘Toyota Salesman Claims Racist Boss Called Him A Curry Muncher’
The Sydney Morning Herald’s publication of the facts surrounding a ‘Toyota Salesman’ exposure to a toxic workplace culture raises questions about the application of the universal right to a safe working environment. This research paper will examine the applicability of the Equal Opportunity Act 2010 (Vic) , Work Health & Safety Act 2011 (Cth) and Occupational Health & Safety Act 2004 (Vic) in the provision of this right. Specifically, is a remedy available to the complainant on the basis of workplace discrimination or bullying? And could Toyota be held vicariously liable for the contravention of the respective Acts? When considering the complainant’s exposure …show more content…
For example, under the Disability Discrimination Act 1992 (Cth) a comparison between a disabled person and someone without a disability, the comparator, in the same material circumstance, was used to determine unfavourable treatment. Toohey J accepted this legal test and applied it in the case of IW v City of Perth. However, Legislators did not intent for this method of determination to be applied under the EOA. According to Parliament, this because it is inherently problematic to find an appropriate comparator and technicalities surround material differences. Rather, the approach adopted in the case of Prezzi v Discrimination Commissioner & Anor is more applicable to the Act, where ‘unfavourable’ was simply given its ordinary meaning rather than the implied use of a comparison. From this perspective, ‘unfavourable treatment’ may be articulated as a detrimental outcome, in dealings with another, due to a protected attribute. In the Toyota Case the complainant now suffers from depression and anxiety due to repeated racial degradation, resulting in being medically certified as unfit to attend work. In Laverdure v Jayco Caravan (Recreational Industries) Pty Ltd & Anor racial comments made in the workplace, a public arena, were deemed to be unfavourable, akin to the Toyota Case. For these reasons, the complainant fits the characteristics of being …show more content…
That is, WorkSafe’s failure to include the evidence of the witness means a ‘detriment’ could not be established and thus the employer could not be found vicariously liable under s 109. This raises the question of whether the complainant afforded procedural fairness. In McCauley v Club Resort Holdings Pty Ltd the company was held liable for the procedural irregularities of a botched discrimination investigation, albeit in a different jurisdiction. With this in mind, it is possible that Toyota will be found liable for the racial discrimination, as they did not act ‘reasonably’ in their response or investigation. The allocation of damages and loss of income will not be discussed due to their procedural, rather than legal,