By Leigh Johnston
The Fair Work Commission (FWC) has declined to hear an Aboriginal truck driver’s late application claiming he was sacked because of his colour, finding there were no exceptional circumstances despite his contention that his position was “substantially less fair” as a consequence of historical racism.
The casual truck driver commenced his employment with the company on 11 October 2018, but his employment was terminated on 9 May 2019. Mr Mason had previously been employed by the company from 29 June 2015 until 29 January 2016 and had also been employed by the company from 11 April 2018 until 10 October 2018 on a permanent part-time basis.
The driver lodged his general protections claim 13 days’ late after being dismissed. The employer provided evidence that the truck driver had received two written warnings about his performance prior to his dismissal and that after being told he was being “let go” he had taken all his possessions saying he’d “sort something out.”
Deputy President Janine Young noted the driver’s explanations for his delayed application were “manifold”.
“Firstly, he submits that he was confused as to the discussion with [his supervisor] on 9 May 2019 and that he was not expressly told that his employment was terminated,” she said.
“Secondly, he submits that he was greatly shocked and distressed by the dismissal and experienced deep anxiety about his ability to support his family and meet his financial obligations.
“In his application, [he] describes this as a “chronic emotional and psychological melt down”.
“Thirdly, at hearing, it was further submitted that [he] is a simple man and not aware of his rights.”
While acknowledging the truck driver would have been “shocked and distressed” about losing his job, Deputy President Young observed this was a “very common reaction” and that he had provided no medical evidence his “melt down” precluded him from lodging his application on time.
Nor was ignorance of one’s rights an acceptable explanation for late lodgement, she said.
“[The truck driver] submits that he was dismissed because of his race or colour,” she continued.
“[His] evidence was that [the supervisor] commenced the termination conversation with the words “I’m not a racist but…”.
“[He] submits that a declaration of non-racism at the beginning of any process is a mechanism to disguise an underlying racist intent.”
Denying the comment, the employer said the supervisor instead started the termination conversation by saying words to the effect of “I’ve nothing against you personally.”
“[The truck driver] submitted that his position was substantially less fair than a non-Aboriginal person in a similar position because, he says, it is reflective of the decades of discrimination in Australian society,” said the deputy president.
“[He] made reference to a range of matters, including the over representation of Aboriginal and Torres Strait Islander people in custody and the stolen wages case.
However, President Young said those matters were unrelated to the direct issue before the FWC: “As such, I am not assisted in my consideration of the fairness as between [the truck driver] and others in a like position by the matters raised by [him] in this regard.”
While the Fair Work Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances, the deputy president dismissed the application.