Employers have a legal responsibility to take ‘reasonable steps’ to prevent harassment and discrimination occurring in the workplace. Employers may also be held ‘vicariously liable’ for the actions of their partners, colleagues, employees, agents or contract workers. Employers must also ensure that people who make a complaint, or are involved in a complaint in any way, are not victimised or treated less favourably as a result. For an employer to avoid liability for workplace harassment, discrimination or other unlawful behaviour, they need to be able to demonstrate they took ‘all reasonable steps’.
In 2000 an Indigenous Australian man, “Pat”, accepted a job with one of the world’s largest accounting and auditing firms, Ernst & Young in the Australian Capital Territory. He had been head-hunted by the company’s recruitment consultant, Ms. Tanya Taylor. Ms. Taylor had been associated with Ernst and Young for some time and one would expect, had presented many candidates to the firm. One would also expect that Ms. Taylor, being a senior recruitment specialist, would know what qualifications and skills would be required for roles at various levels with such an industry and corporation; if not, one must ask why Ernst & Young had employed and retained her.
Blak and Black has discussed the racially motivated attack on Pat in a number of posts and reviewed the alleged abuses that the Australian Federal Police (AFP) have refused to investigate since the very first attempt to report an offence. We’ve also reviewed the prosecution by a racially biased Australian Capital Territory Department of Public Prosecutions (ACT DPP) prosecutor. The actions … and inactions … of the AFP and ACT DPP are inexcusable, but the breaches of confidence by Ms. Tanya Taylor in her role with Ernst & Young are utterly heinous and her involvement in the whole sordid affair goes back to the very beginning. In the letter dated 9 May 2002, written by an ACT Department of Treasury employee (the Inquisitor) the same day that Pat was appointed as Commissioner, the following comments were made:
Louise Fitzgerald, Manager Corporate Services has given me a copy of [the former Commissioner for ACT Revenue’s] application for his substantive position of Manager Policy, Legislation and Projects, Revenue Management Branch. I have attached a copy of [the former Commissioner for ACT Revenue’s] application for your information. [The former Commissioner for ACT Revenue’s] attached application clearly shows that he has limited Public Sector experience and holds unrelated qualifications, being a Bachelor of Arts Degree and a Diploma in Education. I believe that [the former Commissioner for ACT Revenue] is not qualified to act in the position of Director Revenue Management Branch. I have discussed [the former Commissioner for ACT Revenue’s] background with Ms Taylor, Recruitment Consultant of Ernst & Young who has confirmed my assessment that Aborigines are compulsive liars and criminals and that [the former Commissioner for ACT Revenue’s] teaching qualifications made him unsuitable to work at either Ernst & Young or ACT Treasury.
Let’s read that again: “Ms Taylor, Recruitment Consultant of Ernst & Young who has confirmed … that [the former Commissioner for ACT Revenue’s] teaching qualifications made him unsuitable to work at either Ernst & Young or ACT Treasury.” Call me daft, but given Tanya Taylor was in fact the very person who head hunted Pat for this role at Ernst & Young’s Canberra offices, I’d expect that she had verified his suitability for the role first.
Ms Taylor was not inexperienced when she sought Pat for his role at Ernst & Young. She was a senior recruitment consultant, recruiting employees for not only Ernst & Young, but also government departments and agencies. One would expect her to know what the minimum requirements would be for any role for which she acted in recruitment. One would also expect Ms. Taylor to be bound by confidentiality in relation to each and every file and applicant with whom she came into contact, both by the code of ethics of her own professional association and that of the agencies or companies for whom she acted and in the case of Pat, she acted on behalf of Ernst & Young.
Between 22 December 2003 and 30 January 2004, Ms Taylor allegedly discussed and provided the Inquisitor with access to Pat’s Ernst & Young personnel file on at least two occasions, despite the accounting firm having been advised by Pat (as directed by his lawyers, Bradley Allen) that the Inquisitor was acting without legal right (ultra vires). The final failure came with Gillian Morphatt supplying copies of Pat’s personnel file to the Inquisitor, having been advised by the accounting firm’s legal advisors that she could do so under section 4d of the National Privacy Principles (NPP). At some point in time before Pat’s final dismissal from the ACT Public Service on 12 February 2004, Tanya Taylor allegedly altered Pat’s Ernst & Young personnel file. This has been attested to in statutory declarations by several individuals referenced elsewhere on this website.
The Ernst & Young legal team later admitted their advice regarding the release of Pat’s file under the NPP had in fact been wrong, but it was all too late for Pat. With his dismissal all the associated investigations into missing monies halted and those complicit in the cover-up and attacks upon Pat were left unscathed. Pat’s family have been without the benefit of his income ever since.
All of this raises some very basic questions about Tanya Taylor and the calibre of staff Ernst & Young employ.
- Did Tanya Taylor have sufficient experience to act as a senior recruitment consultant for Ernst & Young?
- Were Tanya Taylor’s motives in assisting the Inquisitor racially motivated?
- How many other files did/does Tanya Taylor have access too, be they corporate or government?
- How many others files has Tanya Taylor made available to others in industry or government?
- Has Ms. Taylor provided the Inquisitor with access to the files of any other government employees with which he has been able to manipulate the employment, promotion or investigation processes?
However you view Ms. Taylor’s actions, she appears to have been a willing participant in the destruction of Pat’s career and life and Ernst & Young’s refusal to acknowledge and address the resultant fallout makes them equally culpable. In acting on their behalf, Tanya Taylor leaves the accounting firm ‘vicariously liable’. They have failed ‘… to avoid liability for workplace harassment, discrimination or other unlawful behaviour …’ because the have failed ‘… to demonstrate they took ‘all reasonable steps’. Ernst & Young, in the face of Tanya Taylor, failed to protect the reputation and confidential personnel file of their only Indigenous employee in the ACT office at the time. That doesn’t sound like diversity to me. It sounds like racial vilification and Ernst & Young STILL persist in talking up their diversity credentials, even in the glare of Pat’s very public case. Now the question is just how deep does the bias run? Are Ernst & Young simply racially biased against black people, or do they also have an issue with those with a disability?
|Will you sign the petition calling for a Royal Commission into the Australian Federal Police?|