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Section 103(1)(e): Personal Grievance for Racial Harassment

For the purposes of sections 103(1)(e) and 123(d), an employee is racially harassed in the employee’s employment if the employee’s employer or a representative of that employer uses language (whether written or spoken), or visual material, or physical behaviour that directly or indirectly—

  • expresses hostility against, or brings into contempt or ridicule, the employee on the ground of the race, colour, or ethnic or national origins of the employee; and

  • is hurtful or offensive to the employee (whether or not that is conveyed to the employer or representative); and

  • has, either by its nature or through repetition, a detrimental effect on the employee’s employment, job performance, or job satisfaction.

However, there are situations where an employee may be found to have a personal grievance for racial harassment when the harassment has come from an employee who is not a representative of the employer.

Section 117 states that an employee may make a complaint about another employee's behaviour, if that behaviour is of the nature contained within section 109 (as described above).

Section 117 continues that where an employer receives such a complaint, they must enquire into the facts. There is an expectation that the employer will make a finding as to whether, or not, racial harassment occurred. This obligation is implied in section 117(4), where upon concluding that racial harassment did occur, the employer must "take whatever steps are practicable to prevent any repetition of such a request or of such behaviour."

I wish to highlight here that this obligation to prevent repetition is broad. It is broader than simply disciplining the accused. I believe it involves taking "whatever steps are practicable" to prevent any repetition of the behaviour ... from anyone in the workplace.

If the employer fails to do this, then by virtue of section 118, the employee is deemed to have a personal grievance in accordance with section 103(1)(e); irrespective of the fact that the employee was not racially harassed by their employer or a representative of their employer.

They are found to have a personal grievance for racial harassment.


Legal AF Limited t/a Ashleigh the Advocate

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