Calling NZ Worker “Sheep Shagger” Not Racial Discrimination: Court

A Court has found that the term “sheep shagger” has no connection to race because it could be applied to any New Zealander regardless of their race or ethnic origin.  The finding formed part of a decision in a case brought by a worker against a concrete pumping business alleging breaches of anti-discrimination legislation and the Fair Work Act.

Workplace Rights

The worker alleged he was dismissed from his job as a truck driver in late 2017 in breach of section 340 of the Fair Work Act because he exercised workplace rights.  The worker alleged the exercise of workplace rights involved, among other things, making complaints or inquiries in relation to his employment.  

However, Judge Driver of the Federal Circuit and Family Court of Australia found the worker was not dismissed because he exercised workplace rights.  Rather, the worker’s supervisor withheld further work from the worker because he had formed the view, correctly or otherwise, that the worker was unreliable because of his drinking.

Discrimination

The worker also alleged that he was subject to racial discrimination during his employment in breach of the Racial Discrimination Act.  He told the Court he is a New Zealand citizen who identified as being a Māori and has a dark skin colour. He alleged from about August 2016 until the end of 2016, he was racially abused by one of the partners in the business by being referred to as a “black c**t” and other derogatory statements about being black.  He alleged he was referred to by the business partner at a hotel in 2015 as “that black c**t works for me.”  He also alleged that during the employment, the business partner would refer to his Māori heritage and stereotypes regarding Māori’s and peoples from New Zealand.  This was alleged to include being referred to as a “sheep shagger.”  The worker further alleged his supervisor made statements regarding his skin colour and ethnicity and comments about other drivers referring to him as a “black c**t.” 

The worker gave evidence that he was hurt, humiliated, and offended by the conduct he was exposed to.  He provided a medical report that concluded he suffered from a major depressive disorder, an alcohol use disorder, and PTSD.

Despite the denials of the witnesses called by the business, Judge Driver accepted the worker’s evidence that the comments were made as alleged.  Judge Driver then had to consider whether the comments were discriminatory.  His Honour found that:

[the worker] accepts that the terms “thief” and “dole bludger”, if used in isolation, as much as they are offensive, are not ones which are attributable to any person comprising of New Zealand nationality, Maori race, colour or ethnic origins, including [the worker].

However, when these words or the other words set out by [the worker] as used by [the business partner] are used in combination with the words “all you Maoris…”, then it is beyond doubt that such comments have the necessary discriminatory relationship.

As to the term “sheep shagger”, it is said to be common knowledge that this term is one which is applied to New Zealanders. In my view, however, the expression has no connection to race and could be applied to any New Zealander regardless of their race or ethnic origin.

The remaining alleged comments made by the respondents in particular “black c**t” are not the subject of any challenge as to their discriminatory nature nor their capacity to cause offence.

The Judge accepted the worker had been harmed psychologically by the conduct, although the worker’s psychological state had also been negatively impacted by his drinking which pre-dated the employment and other adverse experiences.  His Honour went on to find that the racial taunts the worker was subject to had a significant impact on his state of mind and ordered he be paid compensation of $50,000.  In addition, the business, the business partner and the supervisor were ordered to issue a written apology to the worker.

Ferguson v John A Martin & Kevin J Pendergast trading as Sharks Shire Pumping [2021] FedCFamC2G 58