Bonjour, Bongiorno, Guten Tag, Ni Hao, Konnichiwa, Hola, Hello.
You may have understood and/or recognised one or more of those greetings in a number of languages, but if the conversation went any further, would you be able to follow? Say this conversation took place in the workplace, what would that mean for you? How would you feel?
As an employee or worker in Australia, could speaking in a language other than English in the workplace constitute exclusion of other employees? Possibly a form of bullying? Or, could a complaint or direction in relation to speaking or not speaking a particular language in the workplace constitute discrimination?
This is not a topic that has been widely tested in the courts. A case (The Western Australian Mint & Industrial Personnel Company Pty Ltd v Jinda Tuinaphiang and Siriphon Linda Schulze) heard back in 2002 by the Equal Opportunity Tribunal of Western Australia involved two employees whose native language was Thai. The two employees were directed not to speak Thai in the workplace to the exclusion of another employee who did not speak or understand Thai. The two Thai speaking employees made a claim for discrimination based on race as a result of the direction not to speak Thai in the workplace.
The Tribunal found that the two employees excluded another employee through their ‘exclusionary discussion in the Thai language’. The Tribunal further accepted that the only reason that the direction was made was to try and resolve the dispute that had arisen between the two Thai speaking employees and another non-Thai speaking employee; and that the direction therefore came about in an attempt to solve a workplace dispute and disagreement, and was not occasioned to treat the two Thai-speaking employees less favourably. Ultimately, the Tribunal found that there was neither direct nor indirect discrimination, because it was not because of, or “on the ground of”, the race of the complainants or any relevant characteristic that the direction was made.
Further, in Fernandes v State of New South Wales [1999] NSWADT 32, the New South Wales Administrative Decision Tribunal said that ‘the Tribunal regards it as totally acceptable for two employees in the workplace to have a private conversation in a language other than English.’. However, the Tribunal went on to say that if the conversation conducted in a language other than English had occurred as part of a broader group discussion, or in proximity of a third employee who felt that they were being discussed, then the request may have had some justification, indicating that, without otherwise, it would not.
What this means is that discrimination on the ground of race could occur if a person is disallowed to speak their native language in a particular workplace setting. Whether the term, condition or requirement regarding speaking or not speaking a certain language in the workplace is reasonable will depend on the circumstances of each case. To be unreasonable, the requirement must be found to have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, of any human right or fundamental freedom in a field of public life.
For example, in the case of the Western Australian Mint, if the direction to not speak Thai around another co-worker was not for the purposes of solving a workplace dispute and was just a direction that all employees must speak English while at work, then could be considered racial discrimination.
The concept of reasonableness has been considered by the High Court of Australia and it was concluded, by a majority, that ‘reasonable’ referred to what was reasonable in all the circumstances of the case, and involves considering not only the position of the complainants but also the position of the Corporation. If we take this interpretation to the case of the Western Australian Mint, what was reasonable in all of the circumstances, including the fact that the complainants were both able to speak English, and the direction not to speak Thai in the workplace was for the purpose of resolving a workplace dispute and ultimately maintaining a healthy and safe workplace, then the Tribunal’s finding of no-discrimination may make sense.
Evidently, the circumstances of each case, particularly when it comes to discrimination, will weigh on what is considered as reasonable and therefore what would constitute direct or indirect discrimination in the workplace regarding a direction to speak or not speak a certain language.
Take-Aways:
Although it is unlikely that your employment contract or workplace policies will specify a particular language that you need to speak, nor expressly exclude the speaking of another language in the workplace:
- Employees should be conscious of their surroundings and/or the circumstances in which they speak another language in the workplace to avoid feelings of exclusion or isolation by other employees;
- Employees have a right to speak languages other than English in the workplace;
- If directed not to speak in a particular language or to speak in one language only in the workplace, employees should be aware of their rights
- This topic is particularly relevant for immigrant workers and workers on visas, or whose first language is not English
