All too often there are reports of migrant exploitation, usually in relation to minimum employment entitlements, but there still remain workplaces in New Zealand where workers suffer other unlawful abuse.
Last week the Employment Relations Authority found that an Invercargill dairy farmer had breached "numerous minimum employment standards" including manipulating payslips and unlawfully deducting money from the wages of three workers that came from Indonesia between December 2017 and February 2022. The farmer was ordered to pay over $215,000 in respect of the breaches.
But it is not only breaches of minimum entitlements that are an issue in our workplaces. In February this year the Human Rights Review Tribunal issued a decision finding that Itwinder Singh was racially harassed by his employer Stephen McKee.
Mr Singh worked for approximately 10 years as a stable hand for a thoroughbred racehorse training business that was owned initially by Mr McKee’s late father and from 2017 was owned by Mr McKee.
Mr Singh claimed that during his employment Mr McKee subjected him to racial harassment in breach of the Human Rights Act as he commented on and made fun of his Indian accent, made belittling remarks about Indians and objected to him and other staff speaking Hindi, telling them to speak English at work.
To be successful in his claim Mr Singh needed to establish on the standard of the balance of probabilities (a legal test that it happened) that:
- Mr McKee used the language complained of;
- The language either expressed hostility against Mr Singh or brought him into contempt or ridicule on the ground of his race, or ethnic, or national origin (being Indian);
- The language was hurtful or offensive to him; and
- The language was either repeated or of such a significant nature that it had a detrimental effect on his employment.
The Tribunal was satisfied that Mr Singh had established that Mr McKee:
- Regularly made remarks about Mr Singh’s accent, including making fun of it and mocking or imitating his accent
- Often objected to Mr Singh and other Indian staff conversing in Hindi and insisted that they speak English, including “C*** talk in English, I am paying you in dollars not rupees”; and “oi, I have told you c***s to speak in English at work”
- Made comments to Mr Singh that “It wouldn’t matter if an Indian dies, there would still be a billion left” and “How much do I owe you, $5 or $10, isn’t that what you get in India ”
In mitigation of this behaviour, Mr McKee acknowledged Mr Singh as being highly educated, highly intelligent, a New Zealand citizen who was not in the category of vulnerable employees who have a language difficulty, or lack education, or are subject to visa restrictions or requirements.
The Tribunal concluded that Mr Singh was racially harassed and that Mr McKee had breached the Human Rights Act. It said that Mr McKee had used language that brought Mr Singh into contempt and ridicule on the grounds of his race and ethnic or national origins. It found that the language used was hurtful and offensive and that it was repeated and had a detrimental effect on Mr Singh’s employment.
When it came to considering compensation, the Tribunal found the racial harassment Mr Singh was subjected to was not particularly hostile, but he had been subjected to it in his workplace by his employer repeatedly over nearly two years. As a result of the harassment the Tribunal accepted that Mr Singh had suffered humiliation, loss of dignity, and injury to his feelings and awarded him $10,000 compensation.
Most New Zealanders would consider, what Mr McKee described as “workplace banter”, as being abhorrent. While Mr Singh was able to stand up for himself, there will be far more that simply tolerate such behaviour because they are reliant on their job. It should not just be the Human Rights Tribunal that calls out such conduct, hopefully our workmates would do the same. Read more....