March 2006
A security guard who was subjected to bullying and racist jibes while working at media group News Limited has been awarded almost $2 million in damages by a NSW court.
However the payout awarded to Devandar Naidu is likely to total more than $3.6 million, as the final amount of compensation to be paid by his former employer - security firm Group 4 Securitas - is yet to be determined.
Mr Naidu had been contracted by the security company to work for News Ltd at its Sydney premises in Surry Hills, Chullora and Parramatta.
He told the NSW Supreme Court he was called a "coconut head", a "poofter", "monkey face" and a "black man" by his former boss at News Limited Lance Chaloner.
He also gave evidence that Mr Chaloner masturbated in front of him, grabbed his genitals and made him ask permission to go to the toilet.
Mr Chaloner had also verbally abused his wife, forced him to do labouring work at his home and drive him to work.
Mr Naidu claimed that as a result of this treatment he suffered chronic depression and post-traumatic stress disorder, leading to his resignation in 1998.
I should concede, in fairness, that I have not been able to explain in a way that I find completely satisfactory the reasons for the plaintiff’s failure to complain specifically about the latter conduct: I am sure they involved fear of reprisal, shame and embarrassment and a sense of subordination and overwhelming powerlessness. To some degree, these explanations must be speculative, since the plaintiff’s insistence that he did complain to Mr Blinkworth naturally prevented questioning that sought to elicit any reasons for not doing so. Yet, bullying behaviour involving grossly improper conduct, including racist and sexist vilification, is notoriously under-reported even in the workplace and the undoubted fact that many victims seem unable or unwilling to take action at least for a considerable period of time shows that such responses are well within the range of ordinary human conduct and we should not be altogether surprised when it occurs. It is a regrettable commonplace of human experience that so often bullies seem to be able successfully to identify their marks.
During the strike, security officers at Cumberland Press were paid in cash and it was necessary to accompany Mr Chaloner and the financial controller of Cumberland Press, Mr Graham Cutler, to the bank to get the cash. The plaintiff was involved in providing information about the hours worked and he (the plaintiff) was responsible for counting the money and paying the workers. This was done daily. As I understand it, these cash payments were in addition to the ordinary wages received from Group 4. When the plaintiff raised this question Mr Chaloner, he said, called him racist names and threw his money on to the floor of the van for him to pick up.
Another specific occasion that the plaintiff recalled when he was the subject of racist abuse from Mr Chaloner was when he allowed a Group 4 security officer to use Mr Chaloner’s vehicle in the course of his duties whilst he (Mr Chaloner) was in Perth and did not need it at all events. This abuse was extended, occurring not only during a telephone call when Mr. Naidu told Mr Chaloner what he had done but also when Mr Chaloner returned to Sydney. The abusive terms included, “a black man, a poofter, a black cunt, monkey face, coconut head, a piker”. The plaintiff said that he informed Mr Blinkworth of Mr Chaloner’s abuse and the reason for it but Mr Blinkworth said no more than that he would talk to Mr Chaloner.
That no, I will not do it, and what he did was when I came to work on Monday he said, all he wants me is for that following Saturday; he said he has got a few people to come and see what he was doing. He said: I don't want you to help me, I don't want you to do anything, to just come along and see what is happening there, and I went and when I went there there was another staff member from News Limited, his name was Hitham Kamaladine, of News Limited, he was there, and there was another managing director of a company which was doing security contractual work, Mr Ian Phillips, he was there as well with Mr Chaloner and his kids, and that day he said to me, he said: ‘I want you to cut this and use a brake [sic] saw’ and, well, I never used it, and he said: ‘Come on, you black man’ in front of everyone: ‘Why can't you do it, just go and cut it’, and he went there, he spoke to me, he said: ‘This is the way you cut it’, and when I cut it, it was done wrong, and he picked it up and threw it down on my foot.
During this period, that is between May 1995 and November 1996, Mr Chaloner required the plaintiff to work on his property frequently for three days a week during the ordinary working week and the usual working hours. Mr Chaloner told him that he had approval from his superior, Mr Stephen Paine, whom he told that the plaintiff was doing a special project for Group 4 and he told Group 4 that the plaintiff was doing a special project for News. Mr Chaloner also, the plaintiff said, told him that he said to security officers at the Surry Hills’ premises only to contact the plaintiff when it was otherwise because he was undertaking a “special project”. The plaintiff said that the officers knew, however, that the plaintiff was working at Mr Chaloner’s house. The plaintiff said that, whilst he was working at the house he did not get any lunch breaks with the possible exception of two occasions and when the builders said to Mr Chaloner “Why don’t you give him a break?” Mr Chaloner replied, “He’s only a black man, don’t worry about him”. These things were also said in the presence of Mr Ian Phillips. The plaintiff said that being referred to in these terms, “would really hurt me and I will feel very, very small and I couldn’t do anything”.
The Human Resources Manager for News was a Ms Sandra McDiarmid. The plaintiff said that Mr Paine came to his office and said that Sandra McDiarmid wanted to talk to him about the allegations made by the female employees and accompanied him to her office. The plaintiff said that either before he saw Ms McDiarmid or afterwards – he was not sure which – Mr Paine told him that if he was asked whether he was aware of any of the allegations made he should say that he was not aware of anything. Of course, the character of this suggestion is very different if it was made before he spoke to Ms McDiarmid, when it suggests he should not disclose what he knew or made after he spoke to her, which merely suggests, in effect, he should keep the matter confidential. In the result, I am not prepared to accept that the plaintiff’s recollection about the precise terms of this conversation is completely reliable. I am not, therefore, prepared to infer that Mr Paine gave the plaintiff any improper direction or attempted inappropriately to influence him.
Two weeks or so later, the plaintiff’s house was damaged by two air rifle shots which broke a light on his verandah. He mentioned this to Mr Chaloner and to Mr Alan Miles, requesting time to go home because his wife was alone and, although the police had been called, they had not yet come to the house. At this time Mr Chaloner again played a childish trick on the plaintiff and, when he upset him, started laughing and said, “What, can’t you take a joke you black man?”
Mr Kamaledine said that on one occasion in the middle of 1995 when he went to speak to Mr Paine he passed Mr Chaloner’s office where the main door was open. He saw Mr Chaloner, who was about four or five metres away, facing away from him towards the plaintiff. He heard him abusing the plaintiff, calling him “black boy” and “black cunt”. Mr Kamaledine said that the plaintiff was “in tears...was horrified and looked very scared”. Mr Kamaledine himself was very concerned about what he had witnessed and, short time later, reported what he had seen to Mr Paine. He said that Mr Payne responded, “Leave it with me, I’ll see what I can do”. Mr Kamaledine commented that “he looked very depressed about it”.
Mr Ian Phillips is the principal and managing director of a firm that undertakes work in the security industry. In 1993 it was contracted to News to make and maintain physical security barriers, slide gates, boom gates and the like, alarm systems and some cameras. In the course of this work, he came into contact with Mr Chaloner and also the plaintiff. He said that he often needed to go to News’ premises, including at Surry Hills. He dealt with Mr Chaloner probably two days a week during 1993 to 1996. He said that he often saw him in the plaintiff’s company. He noticed that Mr Chaloner swore at the plaintiff a lot, using phrases such as “fucking black man”, what Mr Phillips called “the C word”, “you twat”, “you black man”, “coconut”. He said, “there was just a repertoire of words”. He said that on the times that he saw the plaintiff and Mr Chaloner together, such language was used by Mr Chaloner from a quarter to a third of the time. He said that he saw them about two or three days a week and on every day at some point there would be an exchange of this kind. He said that this language was used by Mr Chaloner in relation to his directions for work connected with News. Mr Phillips said that also present when this kind of language was used were Terry O’Dwyer and the women at reception.
News was a significant client of Group 4, which had contracts with the company in five States although not at smaller sites of regional newspapers. Mr Blinkworth agreed that Mr Chaloner was the senior manager in charge of all security for News throughout Australia and it would therefore be reasonable to expect that News would consult him in connection with the letting of security contracts although Mr Chaloner did not conduct any of the negotiations on behalf of Group 4, which he understood were dealt with by Mr John Deegan. Mr Blinkworth did not believe, however, that Mr Chaloner’s views would be significant in relation to any possible cancellation of News’ contract for security services with Group 4. No doubt the extent to which the services were being provided would be a matter upon which Mr Chaloner’s opinions would be considered but Mr Blinkworth said that the contractual or business relationship between Group 4 and News Limited was well above the level both of Mr Chaloner’s and Mr Blinkworth’s responsibilities: it was at Directors’ level. In particular, he did not believe that Mr Chaloner was in a position to have arranged or significantly influenced any decision concerning a proposed cancellation of the contract between Group 4 and News. Even if Mr Chaloner had complained about the adequacy of the service provided by Group 4, Mr Blinkworth said, “I think there would have been a lot of meetings to be had at the senior level before they terminated”. Moreover, as is obvious, Mr Chaloner would have to make good any allegations of inadequacy.