The Case

Vata-Meyer v Commonwealth of Australia (2015)

Ms Vata-Meyer is an Indigenous woman who was employed by the Commonwealth Department of Education, Employment and Workplace Relations (DEEWR).

Ms Vata-Meyer alleged that she had been racially discriminated against by Mr Lee, a co-worker, and claimed DEEWR was vicariously liable for Ms Lee’s conduct. She alleged that:

• when offering her a packet of Chico lollies, Mr Lee had said to her, “have some black babies”; and
• when Ms Vata-Meyer was present, Mr Lee had responded to a work colleague’s question about the difference between camembert and brie cheese by calling out, “I like Coon!”.

Ms Vata-Meyer complained to DEEWR, who conducted an investigation. This resulted in DEEWR making findings against Mr Lee and requiring him to apologise to Ms Vata-Meyer for his comments.

Ms Vata-Meyer was not satisfied with this outcome and took the matter first to the Australian Human Rights Commission, then to the Federal Circuit Court.

The Verdict

In the first instance, the Federal Circuit Court dismissed Ms Vata-Meyer’s application. The Court held that DEEWR’s response had been “adequate and appropriate to the circumstances”, and that Ms Vata-Meyer was not injured in her enjoyment of her work.

Ms Vata-Meyer appealed the decision to the Full Court, who overturned the initial decision, indicating that the primary judge failed to assess whether Mr Lee’s alleged conduct breached section 9(1) of the Racial Discrimination Act 1975 (Cth), regardless of any steps taken by DEEWR to investigate the matter.

The Full Court found that the primary judge had made “no attempt to deal with Ms Vata-Meyer’s evidence that Mr Lee’s conduct caused her distress and hurt, and the subsequent actions of the Department did not relieve either”.

The Full Court found that the primary judge had not properly considered the context of the comments made by Mr Lee or properly evaluated them. The judge had failed to consider that:

• Ms Vata-Meyer had an initial angry response to Mr Lee’s first reference to “black babies”, yet Mr Lee repeated the comment;
• on the very same day, Mr Lee made a reference to “Coon” and Mr Lee admitted in evidence that he knew the term could be used as a racial slur;
• Mr Lee was a work health and safety advisor and should have known better;
• Mr Lee had known that Ms Vata-Meyer had been employed under the Indigenous Graduate Program; and
• Mr Lee had undertaken cultural awareness training in the 2 years prior.

The Full Court remitted the matter back to the Federal Circuit Court for a retrial.

The Lesson

While a final decision is yet to be made on whether Mr Lee’s comments constituted unlawful racial discrimination, the case raises the following important issues for employers:

• any assessment of racial discrimination must consider the perception of the person who is the subject of the conduct (in this case, Ms Vata-Meyer); and
• given employers can be found to be vicariously liable for the conduct of their employees, you must treat any allegations of racial discrimination seriously.

For example, once DEEWR investigated and made findings against Mr Lee, it should have imposed more stringent disciplinary action than requiring a mere apology. Had DEEWR given Mr Lee a warning and required him to undergo further anti-discrimination training, it is possible that Ms Vata-Meyer would not have commenced legal proceedings.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.