‘Misconceived’ complaints of racial discrimination dismissed by tribunal

The complaints of two independent contractors and Aboriginal people of the Gomeroi Nation have been dismissed in their entirety.

Senior member Mark Anderson and general member Maryanne Maher of the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal determined that the complaints made by Matthew Priestly and Mika Rose Tyson failed to prove less favourable treatment on the grounds of race.

They also found a director’s comment was not unlawful race discrimination, that alleged racial slurs were not established, and that neither applicant was terminated on racial grounds.

The respondent, film company Blackfisch Films Pty Ltd, has been officially registered as Blackfisch Films since 2018, and describes itself as a “100 per cent Aboriginal-owned and operated company, supporting cultural awareness and social equity through the power of story”.

Malinda Rutter, owner of the company, was not a party in the proceedings.

The applicants initially brought unfair dismissal claims under the Fair Work Act 2009 (Cth) and sought a general protections claim against the company in the Fair Work Commission, alleging they had been unlawfully dismissed and given a no-notice lock-out from company premises, that this was adverse action due to their Aboriginal identity and workplace activism, that they were subjected to low pay compared to non-Aboriginal employees, and they were subject to verbal hostility and required to clean the premises.

Core to their applications were their identification as employees, rather than independent contractors.

However, deputy president Judith Wright found that the relationship breakdown was due to Priestly’s planned documentary that would divert funding from Blackfisch Films, and that the lock-out was a security measure.

It was further found that Tyson left of her own volition and had been paid in full upon departure.

Following this decision, the applicants pursued their allegations of race discrimination and harassment under sections 7, 8, 10 and 109 of the Anti-Discrimination Act 1977 (NSW) in NCAT.

The grounds were altered slightly for the tribunal, alleging less favourable treatment and harassment on the grounds of race, including allegations of racial slurs – such as being told to “go back to the mission” and that the company may be “too black” due to political activism from Priestly, racial harassment under section 102, as well as purported cleaning duties.

The applicants also claimed non-economic loss, distress and cultural harm.

Anderson and Maher dismissed the complaints, finding no evidence of less favourable treatment – rather, the applicants were treated more favourably given their Aboriginal heritage – and determining that variations in wage and responsibilities were due to business criteria and role obligations, rather than due to the applicants’ race.

It was also concluded that the applicants were not employees of the film company, but independent contractors that issued their own invoices and operated under individual ABNs.

The tribunal also held that the comment regarding the company looking “too black” due to political activism was not race discrimination, but a comment regarding the business impact of said activism, and that activism is not an inherent attribute belonging to all Aboriginal people.

The allegations of racial slurs were also thrown out as hearsay.

The tribunal said: “It is unnecessary for the Tribunal to consider whether there is any form of estoppel preventing the applicants’ claim from succeeding, because they do not success on the basis of all the evidence in these proceedings.

“In all the circumstances referred to previously in these reasons the Tribunal finds that the claims of unlawful discrimination on the basis of race are not made out by the applicants.”

All allegations were dismissed pursuant to s 102 of the Anti-Discrimination Act 1977 (NSW) and s 55 of the Civil and Administrative Tribunal Act 2013 (NSW).

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