Yukio Hayashi 24 Jan 2019
Q: I heard abusive words and was harassed from my boss at work because I am Japanese. Can this be racial discrimination?
A: There are many laws in Australia that prohibit discrimination based on race, gender, or physical or mental disability. Taking racial discrimination as an example, there is a non-discrimination law that applies at the state level in addition to the Racial Discrimination Act 1975 (Cth) that applies to the entire Australian Federal jurisdiction. In NSW, the Anti-Discrimination Act 1977 (NSW) applies.
Most of all, the word "race" is a broadly defined concept. Under the NSW law, not only skin colour but also nationality, ethnicity and religion are included in the definition of "race".
A question of whether or not there has been racial discrimination is determined by asking how the person who has acted against you would treat another person in the same situation. In the current case, for instance, if an Australian colleague in the same position as you was treated differently from you, it is likely that such conduct amounts to racial discrimination.
There are three legal measures to deal with racism at work. First, an employee may submit a complaint to the state agencies. In NSW, the Anti-Discrimination Board (ADB) deals with such complaints. Second, lodging a complaint to the federal agencies such as the Australian Human Rights Commission (AHRC) would be an alternative. However, complaints to these agencies do not immediately initiate a legal proceeding. These institutions generally provide opportunities for the parties to discuss, such as through mediation. Negotiations on this occasion may result in apologies and reparations, and the dissemination of rules to prevent racism in the workplace as remedies. If the negotiation fails to lead to a settlement, you can bring a legal action before the court.
Third, if racial discrimination occurs in the workplace, the aggrieved party may bring legal action. With regard to complaints under employment law, whether to bring a case to the Fair Work Commission or the Federal Court depends on the nature and consequences of the discrimination. It is important to note that you must file an action with the Fair Work Commission within three weeks of the day of dismissal