In a recent NSW Equal Opportunity Tribunal decision, the licensee of a hotel and a contractor security firm were found to be jointly and severally liable for racial discrimination and were ordered to pay $2,500 each in compensation.
The discrimination arose out of a policy that the hotel had implemented whereby persons of a particular ethnic appearance were to be refused entry to the hotel unless they were known to the hotelier. The hotel had grown fearsome of past incidents of violence that had involved people of this ethnicity and hence the hotel instituted the policy.
The hotel’s security arrangements were handled by a firm of contractors and it was an employee of the contractor who implemented the hotel’s policy by refusing a man entry into the hotel pursuant to the policy.
Whilst the hotel admitted that its policy discriminated against the man on the ground of his ethnicity, the Tribunal found that the security contractor had also discriminated against the man by assisting the hotel to enforce its discriminatory policy.
In another recent decision the Full Bench of the Federal Court has confirmed that statements in an employer’s workplace policy may be construed as terms of the employment contract.
In this particular case, a dispute arose between an employee and employer. After a delayed investigation carried out within the employer’s operations, the employer ultimately determined that it had addressed the dispute situation in the most appropriate way. The employee however argued that his employer had been tardy in its investigation and was contractually bound to follow its own policies by investigating the dispute issue in a most expeditious way.
The Full Bench found that aspects of the company’s policy were not contractual as they were statements of an aspirational nature. However, the Court found that the statement in the policy ‘the employer will take every practicable step to provide and maintain a safe and healthy work environment for all people’ formed part of the employee’s contract and had not been adhered to.
The Court thus found that the employer’s delay in taking prompt and adequate action in response to the employee’s complaint constituted a breach of a contractual obligation.
In both these instances, the employers concerned might have avoided the consequences of their policies by, in the first instance, having the hotel policy checked as to its lawfulness before applying it, and in the second instance, taking advice about the effect of its policy and avoiding to the extent it required, language which imposed contractual obligations they might otherwise not want.
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