Unfair dismissal tests vilification laws
THE employment arbiter is continuing its work to decide whether a case of alleged racial discrimination against Jewish people perpetrated in a factory contravenes federal laws.
THE employment arbiter is continuing its work to decide whether a case of alleged racial discrimination against Jewish people perpetrated in a factory contravenes federal laws.
New details of the case between a former employee and Australian Personnel Solutions (APS), currently before Fair Work Australia, emerged recently.
The case has been ongoing since September last year, with Fair Work Australia grappling with the unfamiliar territory of racial discrimination.
In 2010, Stephen O’Loughlin, who was fired by APS for allegedly etching a swastika onto a freezer door and writing “welcome to hell”, was ruled to have been unfairly dismissed by the arbiter.
APS lawyers appealed the decision, telling Fair Work Australia vice-president Michael Lawler that Commissioner Ian Cambridge had made an error in his original finding of unfair dismissal.
The lawyers argued it was reasonable to deduce O’Loughlin’s act was likely to offend someone and that it had been committed in a public place, a requirement of the Com monwealth Racial Dis crimination Act. However, the definition of a public place became a hot topic at the appeal.
According to the act, a public place “includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place”.
But while Lawler accepted it was likely more than 100 people could have seen the swastika, he questioned if the definition in section 18C was relevant in the case.
During the initial hearing, the APS employee, who admitted to saying that “Jewish people did the wrong thing and crucified Jesus”, said he didn’t intend to offend anybody and that he was trying to compare his chilly working conditions with life in a concentration camp.
Despite this, in his findings, Commissioner Cambridge stated non-Jewish people were unlikely to have the same depth of understanding for the hurt that could be created by the sight of the swastika.
“It seems that the assumption is made that if anyone draws a swastika, that it represents racial vilification. I don’t know that you can make the connection,” Commissioner Cambridge said.
The case is being held over for a decision by Fair Work Australia.
JOSH LEVI
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