An Aboriginal public servant has lost a bid to force her co-workers to undergo anti-discrimination training, despite one referring to "black babies" and "Coon cheese" at a staff afternoon tea.
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Edna Vata-Meyer moved to Canberra from North Queensland in early 2011 to work at the Department of Education, Employment and Work Relations as part of the Indigenous Graduate Recruitment Program.
But a number of incidents led Ms Vata-Meyer to complain about racism in her department.
She claimed seven of her colleagues engaged in conduct in August and September 2011 that humiliated, harassed and intimidated her on the basis of her race, colour, descent or ethnic origin.
On one occasion, a co-worker took a packet of chocolate flavoured jelly babies – known as "Chicos" – to an afternoon tea and twice offered them to Ms Vata-Meyer and another Aboriginal woman with the words, "here are some black babies".
Later, when asked what sort of cheese he liked, the man responded: "I just like plain old Coon cheese".
Ms Vata-Meyer complained to her superiors about the comments and received an apology from the man.
But she was unhappy with the way her concerns were handled and claimed DEEWR failed to investigate the man or to take sufficient action to ensure he had been properly trained in relation to workplace anti-discrimination, bullying and harassment.
In April 2012, Ms Vata-Meyer wrote to the Australian Human Rights Commission, but the complaint was terminated on the grounds that there was no reasonable prospect the matter could be resolved by conciliation.
So Ms Vata-Meyer took the matter to the Federal Circuit Court, claiming the respondents each engaged in racial discrimination against her and the Commonwealth was liable for those unlawful acts.
She asked the court to order that she be redeployed to another department within the Australian public service, that she receive compensation and a written apology from each of the respondents, and that the Commonwealth force each respondent to undergo anti-discrimination, anti-bullying and anti-harassment training.
But the respondents denied they breached the Racial Discrimination Act, contested some of the facts, and the Commonwealth denied liability.
Court-ordered mediation failed.
Judge Rolf Driver, in a judgment handed down last week, found some of the comments had been offensive.
"There is little doubt, in my view, that an invitation to eat 'black babies' is likely to offend an Aboriginal person," Judge Driver wrote.
"A statement of a preference for 'Coon cheese' is of a different character.
"It is a well-known and established brand of cheese and there is no necessary connection with race. The word 'coon' has several meanings, only one of which is a racially pejorative one."
Despite finding the 'black babies' comment offensive, the judge dismissed the case, finding Ms Vata-Meyer had failed to establish any breach of the Racial Discrimination Act by any of the respondents.
"Ms Vata-Meyer, in order to succeed, must establish a connection between the impugned acts and her race," Judge Driver said.
"[But] I conclude that Ms Vata-Meyer has failed to establish any breach of the [Act] by any of the respondents."
The judge rejected allegations some of the alleged actions by departmental staff had connections to race.
"The mere failure to follow established practice and procedure in relation to a particular act does not establish that the act occurred because of race."
Judge Driver said the response to the offensive comments – in the form a reprimand for the man and an apology – had been "reasonable and adequate and appropriate to the circumstances".
"That action should have ensured that Ms Vata-Meyer was not injured in the enjoyment of her work and in enjoying fair conditions of work," the judgment said.
"The department acted promptly to deal with Ms Vata-Meyer's complaint and the offensive conduct was not repeated.
"In my opinion, provided that the investigation and resolution of Ms Vata-Meyer's complaint was adequate to the circumstances, the [comments by the man] would not have impaired Ms Vata-Meyer's enjoyment of her right to work."