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The context of "humorous" communications between employees who were friends outside of work was crucial in determining whether some comments were unlawful discrimination, the Federal Circuit Court has noted.

Deputy Chief Judge Patrizia Mercuri accepted there were comments that could be considered "racially inappropriate" when viewed in isolation.

But in the context of the friendship that had formed between the pair, which extended to communicating and joking outside of work hours, and having lunch together most days, the conduct an employee complained about wasn't discriminatory, she found.

The former Toto Properties labourer, who is Chinese, claimed his colleague had discriminated against him on the basis of his race, and that the employer was vicariously liable for his actions...