- This decision illustrates how discrimination and occupational health and safety issues can arise when managing a diverse workforce.
In the recent decision of Tanevski v Fluor Australia Pty Ltd  NSWADT 217 the New South Wales Administrative Decisions Tribunal found that the demotion of a Macedonian-born rail supervisor on grounds of his poor literacy skills amounted to indirect racial discrimination under the Anti- Discrimination Act 1977 (NSW).
Macedonian-born Chris Tanevski , who migrated to Australia in 1967, was employed in rail maintenance for 40 years, including 31years as a rail supervisor. In 2001 Fluor Australia Pty Ltd took over the rail operations at Port Kembla steel works and employed Mr Tanevski to supervise around 20 people to maintain tracks. Mr Tanveski had a limited ability to read and write English but was considered to be a good worker with a good safety record.
In November 2006, Fluor commissioned a report to identify safety issues at the Port Kembla site. The most critical area for improvement of safety standards was identified as "management of low English literacy standards of personnel". After updating its health, safety and environmental management plan, Fluor demoted Mr Tanevski from his position as rail supervisor.
The 60 year old was due to retire in the next 12 to 15 months and the demotion had a significant effect on him, as he felt unable to return to work after he was demoted. Mr Tanesvski left work only days after being demoted and has not worked since.
Mr Tanevski alleged that he was denied the opportunity to complete English Language training as an alternative to his demotion on account of his age.
Mr Tanevski also alleged that he had either been directly or indirectly discriminated against on the basis of race in that his job description had been altered, his rank as supervisor removed and his vehicle downgraded.
Mr Tanevski's complaint of age discrimination was dismissed. The Tribunal found that Fluor was not offering English language training to any employees at that time.
The Tribunal also rejected any claim of direct race discrimination. It found that Mr Tanevski was removed from his position as Fluor considered Mr Tanevski's literacy level posed a safety risk in the workplace. Therefore, Mr Tanevski was not removed from his position because he spoke English as a second language.
However, the Tribunal did accept Mr Tanevski had been subject to indirect discrimination on the ground of race. In particular, the Tribunal found that:
- Fluor had imposed a requirement or condition that Mr Tanevski have a literacy level that enabled him to write incident reports and statements in English in order to keep his job as a rail supervisor.
- the rate of compliance with the requirement of a certain level of English would be less for Macedonian employees not born in Australia than for the dominant group of Anglo-Australians.
- a substantially higher proportion of Anglo-Australian employees of Fluor who are otherwise eligible for appointment as supervisor would be able to comply with the literacy requirement than comparable employees whose national origin is Macedonian.
- In terms of the reasonableness of the requirement, the Tribunal looked to the facts of the case. Fluor's argument was that Mr Tanevski's low literacy level put other employees at risk. Safety concerns, the Tribunal noted, had a logical basis. However, in this case there was no evidence of a single incident relating to safety risks that arose as a result of Mr Tanevski's literacy level. In fact, Mr Tanevksi had received glowing reports by previous superintendents and his literacy level had been accommodated by Fluor for five years. The Tribunal held that the requirement imposed was unreasonable in all the circumstances.
Under section 54(1)(a) of the Anti Discrimination Act, an act will not amount to unlawful discrimination if it was necessary in order to comply with another law. Fluor argued in defence that it was necessary to demote Mr Tanevski in order to comply with health and safety obligations under section 8(1) of the Occupational Health and Safety Act 2000 (NSW).
However, the Tribunal did not find Mr Tanevksi's demotion necessary in the sense of being mandatory and specific in light of the fact that Fluor had the other 'practical, low cost option' of English training for the former rail supervisor during the remaining time of his employment until retirement. Moreover, there was no evidence that the employee's low level of English literacy put himself or others at risk.
This decision has since been appealed and at the time of writing is stayed, pending the appeal.
The decision in Tanevski reinforces that safety will not always be a blanket defence to a discrimination claim, without looking at the circumstances behind the case. This is especially so where there are other reasonable and practical alternatives available to the alleged discriminatory conduct, such as employee training. In this respect, the Tribunal noted the safety objective introduced by Fluor's health, safety and environmental management could have better addressed Mr Tanevski's low literacy levels through English training and assistance with written reporting.
Safety compliance and the safety defence are critical. However, application of a standard, without consideration of individual circumstances, will not insulate an employer from risk. The training for Mr Tanevski was considered a low cost option, and an acceptable alternative to demotion for an employee with 31 years service and no prior history of safety incidents arising from his literacy. Accommodating training and additional support for Mr Tanevski, in the period of 12-15 months prior to his retirement, should have been considered.
This case is of interest on a number of levels. It highlights some of the dynamics that arise when the nature of positions change over time (from manual to paper-based) and the challenges of managing a multicultural workforce in such circumstances. It also illustrates some of the tensions that can exist between competing obligations under anti-discrimination and occupational health and safety law, and the issues employers face in determining how to comply with both. Moreover, the decision in Tanevski is yet another example of how compliance with OHS laws may not necessarily give rise to a blanket defence to a discrimination claim.
As the decision is subject to appeal, perhaps further guidance may be given to the interplay between safety and discrimination obligations.
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