Tribunal finds no substantial evidence of discrimination on basis of race
A truck driver who took Qube Logistics to the Victorian Civil and Administrative Tribunal (VCAT) over an alleged breach of the Equal Opportunity (EO) Act due to race discrimination has had his case thrown out.
The applicant, who describes himself as caucasian, claims he was indirectly and directly discriminated against due to company recruitment policy, and preferential treatment by a transport manager towards a fellow driver, both of whom he described as being of Indian descent.
Part of the applicant’s claim included that, as a multi combination licence holder, on occasion he was forced into lower grade work when compared to his colleague, “in effect a demotion in rank and status”.
Further, he alleged additional victimisation for his objection to the proportion of Qube staff of Indian descent, which he claimed was roughly 40 per cent, as risking the potential of “nepotism” and “corruption”.
Following a formal complaint by the transport manager on his views, the applicant was stood down with full pay pending an investigation.
VCAT heard he then resigned, alleging he was not accorded a presumption of innocence, and did not want to be “put through the charade of a kangaroo court”.
Qube was able to successfully argue it allocates duties in line with its workplace agreement, on an as-needed operational basis, which includes “within the employee’s recognised and required skills and capabilities” and for “higher or lower grade for which the employee is qualified”.
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The company also proved the applicant did not suffer any loss of pay or detriment in those roles, that standing him down with full pay was in line with the workplace agreement on dispute settlement, and his decision to resign was not due to anything done or caused by the company.
Further, VCAT heard the fellow driver was not of Indian background.
Therefore, “even if such reallocation caused [the applicant] detriment, it cannot be reasonably understood to be based on his race”, it notes.
Qube demonstrated its equal employment opportunity obligations via its documented Code of Conduct and Ethics, Diversity Policy, Workplace Behaviour Policy, Employee Handbook, Recruitment Procedure, Employee Assistance Program, Employee Induction, and Unconscious Bias Training.
VCAT found this did not equate to Qube having a specific policy or practice of employing drivers of an Indian background – despite the applicant’s assertions about disproportionality – and, in any case, an allegation that there is a significantly higher number of truck drivers of Indian background at Qube does not constitute a breach of the EO Act.
The applicant’s reliance on hypotheticals, and lack of verifiable evidence, including an accusation that Qube’s Indian truck drivers were “behaving as the overwhelming dominate (sic) tribe … with the approval and support of Management”, was ultimately found by VCAT to be “misconceived or lacking in substance”.
The tribunal sternly dismissed the case, noting “it is manifestly hopeless, undoubtedly untenable or groundless and bound to fail”.
It was noted the driver previously had claims relating to this matter dismissed by the Fair Work Commission (FWC), Australian Human Rights Commission (AHRC) and Victorian Equal Opportunity and Human Rights Commission (VEOHRC).