Rebekah Fryer, Associate
The New South Wales Administrative Decisions Tribunal (ADT) has found that a 60-year-old, Macedonian-born employee was subject to indirect racial discrimination when he was demoted by his employer from a supervisory role on account of his low literacy skills.
Facts
Mr Tanevski migrated to Australia from Macedonia in 1967 and worked for the next 40 years in rail maintenance. For 31 of these years, Mr Tanevski worked in a supervisory role. In 2001, Mr Tanevski was working at the Port Kembla steel works when it was taken over by Fluor Australia Pty Ltd. Fluor employed Mr Tanevski as a supervisor of 20 people. In 2006, Mr Tanevski was demoted when the company became aware that he had extensive difficulties in reading and writing English, which Fluor believed presented an unsatisfactory safety risk.
An internal Fluor report into safety issues had identified low English literacy standards as its most critical area for improvement. It found that track maintenance, the area in which Mr Tanevski worked, was a potentially dangerous area and that risks could be minimised through a system of daily reports and incident management. Fluor was concerned that Mr Tanevski would be unable to comply with the new requirements because of his low level of written English skills and that this was a potential risk to safety in the workplace.
Fluor decided to demote Mr Tanevski to a project that involved him assisting another supervisor. Mr Tanevski became stressed and anxious and could not continue working after his status was downgraded.
Mr Tanevski brought a claim for direct discrimination on the grounds of race and age, and indirect discrimination on the grounds of race.
Decision
The ADT found that, although Fluor believed that Mr Tanevski's low English literacy was an unacceptable risk to other workers, it was not necessary to remove him from his position as supervisor.
The Tribunal held that Mr Tanevski could read straight forward work orders and had been compensating for his lack of literacy skills by using his own judgment, or by asking others to assist him. If Mr Tanevski had remained in his position, the ADT was of the view that he would not have put himself or others at risk as he had an exceptional safety record. It could not identify any safety-related incident caused by Mr Tanevski's lack of literacy.
Mr Tanevski could have been trained in Fluor's new Health, Safety and Environmental system but was not. It was found that, in the past, persons with low literacy standards had satisfactorily passed training without being made to fill in the forms. Fluor could have also given Mr Tanevski additional training on how to complete the new forms and could have provided him with assistance in filling out the forms and writing reports. Helping Mr Tanevski to write reports and filling out forms would have enabled him and others to continue to work safely.
The ADT found that Fluor had not organised any training at the time of Mr Tanevski's demotion and, in circumstances where there was a short-term position open and Mr Tanevski planned on retiring in the next 12 to 15 months, a demotion to the available position was considered the best course of action.
The Tribunal concluded that there had been indirect discrimination on the grounds of race. It found a "substantially higher proportion of Anglo-Australian employees of Fluor who were otherwise eligible for appointment as a supervisor would be able to comply with the literacy requirement than comparable employees whose national origin was Macedonian". Mr Tanevski had suffered significantly as a result of the discrimination. At the time of writing, the ADT is yet to hand down orders stating what remedial action is required by the employer.
Lessons for employers
When introducing changes in the workplace, employers should not be too quick to make assumptions about what employees can or cannot do. Employers should properly investigate all options available to enable employees to adjust to the changes, such as training. In this case, if Fluor had trained, or given proper consideration to the training options available, Mr Tanevski would have been able to meet the new health and safety requirements it had introduced. For further information see Tanevski v Fluor Australia Pty Ltd [2008] NSWADT 217 [27th August 2008].
Australia's Best Value Professional Services Firm - 2005 and 2006 BRW-St.George Client Choice Awards
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
