Fortunato v White Ink Agency Pty Ltd [2023] NSWCATAD 333

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Fortunato v White Ink Agency Pty Ltd [2023] NSWCATAD 333 Hearing dates: 8 December 2023 Date of orders: 21 December 2023 Decision date: 21 December 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr R Dubler SC, Senior Member S Davison, General Member Decision: The complaint in whole is dismissed. Catchwords: EQUAL OPPORTUNITY – whether the Applicant was victimised for making complaints of racial discrimination contrary to s 50 of the Anti-Discrimination Act 1977 (NSW) – whether the Applicant suffered racial discrimination at work at the hands of the Respondent Legislation Cited: Anti-Discrimination Act 1977 (NSW) Texts Cited: Nil Category: Principal judgment Parties: Roy Fortunato (Applicant) White Ink Agency Pty Ltd (Respondent) Representation: Applicant (self-represented) P White (Director and Agent for the Respondent) File Number(s): 2023/00237355 Publication restriction: Nil

reasons for decision

Introduction 1. The Applicant (Mr Fortunato) is a chef. He is of African descent and identifies as an 'African Black' man. Mr Fortunato was born in Angola in 1974. In his home country he experienced terrible hardship and violence to his family due to the war in that country. This has included the death of both his parents and the disappearance of his older brother and two younger sisters. This has left him alone in his immediate family. He came to Australia in 1995, looking for a better future. 2. The Respondent operates a small business which includes hiring out chefs to clients to perform casual work in their kitchens and events. For a period of time Mr Fortunato was on the books of the Respondent and performed work as a casual chef for the Respondent's clients. When working these shifts at client venues, Mr Fortunato was a casual employee of the Respondent. 3. Mr Fortunato had been working for the Respondent in this way for approximately six months. Matters came to a head on 14 June 2022. On that day, a conversation took place between Mr Paul White, Director of the Respondent, and Mr Fortunato. Matters became heated and harsh words were used by Mr Fortunato. 4. Mr White in evidence readily accepted, with a smile, that chefs can be temperamental, and tempers are often frayed in a kitchen. On this occasion, Mr White indicated to Mr Fortunato that he would no longer be offered work by the Respondent. 5. Mr White says that this was because of the Applicant's attitude, work performance, complaints from clients and his failure to turn up without proper notification at two or three shifts he had accepted. He also says his decision was influenced by the manner in which Mr Fortunato spoke to him on 14 June 2022. 6. Mr Fortunato says that he was bullied and discriminated against at the venues that had made complaints about him because of his race. He told Mr White this. He tells us that it was because of his race and/or because he was making complaints of racial discrimination that Mr White decided to take him off the Respondent's books and not offer him further work. 7. Mr. White denies this. He tells us that the first he heard of any allegation of racial discrimination was at the Anti-Discrimination Board. He says he was not even aware of Mr Fortunato's race at the time of the conversation. He does agree that Mr Fortunato referred to making a claim to Fair Work and that Mr Fortunato said he would 'see us in court'. 8. We have to decide whether Mr Fortunato's version is correct and whether the Respondent has breached the relevant provisions of the Anti-Discrimination Act 1977 (NSW) (the ADA).