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Shocking allegations were made in an anti-discrimination application presented to the NSW Civil and Administrative Tribunal (NCAT), filled with accusations of body shaming, racial discrimination, and physical abuse.
An employee with a Nigerian background, who operated on a casual basis as a disability support worker, recently filed an application claiming that she was subjected to unlawful discrimination conduct contrary to the Anti-Discrimination Act 1977 by her fellow colleagues.
The employee was employed in her role from January 2022 to January 2023. She gave birth to her third child in May 2023. The employee alleged that she was discriminated against based on her race – including her skin colour – and her sex arising from her pregnancy. Based on the inconsistencies within the allegations, the tribunal dismissed the application.
List of allegations
One of the allegations brought forward by the employee was that “around 5 January 2023, I began receiving more comments about my skin colour and race and was told: ‘You could definitely come take a walk with us to stop being a fat f--k’.”
According to the tribunal, apart from the date, “the alleged racial comments were not further particularised, including who is alleged to have made them”. The tribunal ultimately found that these allegations pertaining to the “comments” made by her colleagues were unsustainable, and therefore, the complaint of race discrimination was dismissed.
The employee also alleged that right throughout her employment, another disability support worker referred to the employee as “the fat one”, once telling her that she “looke[ed] like a donut” while she was eating lunch, and proceeded to bully the employee and make jokes more frequently as she became pregnant.
These claims, however, failed to fall within the legal parameters pertaining to the Anti-Discrimination Act, as:
“Comments about a person’s weight that are unconnected with pregnancy (and thus their female sex) are not actionable per se as unlawful conduct under the AD Act. The [employee] must therefore establish a connection between the alleged comments by [the colleague] and the [employee’s] pregnancy to establish unlawful discrimination.”
The employee’s evidence primarily relied on the fact that she previously told colleagues about her pregnancy via a WhatsApp group – claiming that this specific colleague was aware of her pregnancy.
However, the colleague denied making such comments, denying that she knew the employee was in fact pregnant. The tribunal found that on the balance of probabilities, the colleague did not make these alleged comments, as it was clarified that she was not aware of the pregnancy.
The awareness of the employee’s pregnancy status was a focal point of another allegation pointed towards the employee’s service manager. It was alleged that the service manager failed to make “reasonable adjustments” regarding the employees’ pregnancy – claiming he “did not care” when he was informed.
The date of when the service manager was properly notified of the employee’s pregnancy was contested between the two parties – with the employee claiming she notified him at the end of October/beginning of November 2022 once again via WhatsApp.
The service manager emphatically denied he had been notified of the pregnancy by the employee in October/November 2022 or at all – in fact, he claimed in his evidence that he didn’t find out about the pregnancy until he was alerted about the employee’s AD (anti-discrimination) application.
With the service manager no longer working for the company, the tribunal found that his evidence was compelling – dismissing the allegation.
Laptop incident
The final and most relevant allegation was based on an incident that took place on 5 January 2023, where the employee allegedly arrived at the workplace on a day that she was not rostered. The employee, in her evidence, claimed that the incident occurred in late December 2022. The details of what occurred are contested.
According to the employee, after arriving at the workplace, she needed to rest due to her pregnancy. She became concerned about what she deemed as “staffing issues” that day and sent an email using the work laptop and official work email address alerting management about this concern.
In her evidence, the employee alleges she was subjected to “verbal aggression” by the service manager by way of a phone call – claiming he said: “I don’t fucking care if you’re pregnant, get out.”
She then alleges that a staff member who was working at the time “physically touched and pushed [her] out of the office” at the instruction of the service manager.
These allegations were dissuaded as the other parties involved (service manager and staff member) gave consistent evidence claiming that the employee should not have been in the office or using the work laptop; she was asked to stop what she was doing and leave, which she declined to do; she was not subjected to any verbal aggression or physical hostility.
The pair also stated that the police were called as the employee continued to refuse to leave despite not being rostered – to which the employee eventually left on her own accord.
Again, these allegations were dismissed.
Overall, the tribunal found that the evidence presented by the employee was “in some respects inconsistent” – whereas the evidence presented by other parties was found to be clear and consistent.
“Having found that the complaints do not establish any contraventions of the AD Act, the correct and preferable decision is for the tribunal to dismiss the [employee’s] complaints,” it said.
Kace O'Neill
Kace O'Neill is a Graduate Journalist for HR Leader. Kace studied Media Communications and Maori studies at the University of Otago, he has a passion for sports and storytelling.
