A decade of alleged slurs, no complaint to HR, and the claim fails

What happened

Anya Te Whaiti was born in Wellington, New Zealand, to parents of Maori heritage. From 2008 she worked at Winc's Erskine Park warehouse, an office supplies depot, first as a labour hire forklift operator and then, from June 2012, as a Winc employee. She was promoted several times, became Transport Supervisor in November 2018, and was made redundant on 6 August 2020.

She was pregnant seven times while she worked there. After she left, she sued Winc and seven people she had worked with, several of them her managers. She said that for more than a decade she had been the target of slurs about New Zealanders and Pacific Islanders, of jokes mocking her accent (being made to say "six" and "fish and chips"), and of repeated remarks about her pregnancies and the size of her family, including that she "breeds like rabbits". She also alleged unwanted sexual attention from two men.

Everyone she sued denied the conduct.

The claim

Ms Te Whaiti complained to the Australian Human Rights Commission in January 2021, then went to court in February 2022. She claimed under the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth), seeking compensation, damages, apologies and training for the individuals.

Under the Racial Discrimination Act, s 9 makes it unlawful to treat someone differently because of their race in a way that impairs their rights, including the right to work free of discriminatory comments. Section 18C makes it unlawful to do something, otherwise than in private, that is reasonably likely to offend, insult, humiliate or intimidate a person because of their race. That is an objective test: what matters is whether the act was reasonably likely to have that effect, not only how the worker felt.

Under the Sex Discrimination Act, the question was whether she had been treated less favourably than someone without her sex, pregnancy or family responsibilities would have been. Sexual harassment means an unwelcome sexual advance, request or other conduct of a sexual nature, in circumstances where a reasonable person would have anticipated the possibility that she would be offended, humiliated or intimidated. An employer is generally liable for its employees' unlawful acts at work unless it took all reasonable steps to prevent them.

What the court decided

Judge Cameron dismissed the whole application. The judge did not decide that comments like these would have been lawful. On one point, the judge found that the depot was not a public place, but that most of the comments, if made, were not made "in private" either, so s 18C could have applied. The claim failed because the court was not persuaded that the conduct happened as she described it.

Why: the burden of proof

The worker who brings a discrimination claim has to prove it. Under the Briginshaw principle, the more serious the allegation, the more the court needs before it is satisfied; satisfaction "should not be produced by inexact proofs, indefinite testimony, or indirect inferences". The judge preferred the respondents' witnesses for several reasons.

No corroboration. If the remarks had been made, many people would have heard them over the years, but only one co-worker gave evidence for her. He did not say he heard her main manager speak as alleged, and the judge gave his evidence little weight.

No complaint to HR. In what was described as quite a multicultural workplace, there was almost no sign of similar treatment of anyone else, and HR had no record of any complaint from her. Ms Te Whaiti had signed a certificate in 2012 saying she had read the grievance and equal opportunity policies, had done the harassment training five times, and agreed she knew complaints could go to HR. The judge concluded that she did not report the matters to HR "because there was nothing of substance to report".

Her evidence about complaining was inconsistent too. She said she had not complained because she was new or did not want trouble with her boss, then that she had complained to managers many times. She never went to HR.

Her account shifted. She first described a meeting about her pregnancy as threatening. In cross-examination she accepted a version which, the judge said, showed her manager being "concerned for and supportive of her". The judge also found her accent presented "no difficulty in comprehension", which cast doubt on her evidence that a later manager had mocked her English.

The sexual harassment allegations failed too. She said one man stopped bothering her once she pointed out he was married; his unchallenged evidence was that he was not married. The other man said he worked in a different part of the warehouse, and her account of him was uncorroborated. A psychologist's report diagnosed depression linked to her account, but the judge did not accept that account.

What this means for you

Discrimination cases are often one person's word against several, years after the event. If you are being mistreated at work, it is worth writing down what was said, when and who heard it, and keeping copies of any complaint you make. A written complaint creates a record that is hard to dispute later.

Many people do not complain for good reasons, such as fear of their manager. This judgment shows a court may still ask why no complaint was made, and treat that as a reason to doubt the claim. For employers, signed policy acknowledgements, training records and HR files counted heavily. Consider getting advice early, before the trail goes cold.