Racially motivated comments unacceptable in workplace
Nasty comments in the workplace based on religion or culture are no longer acceptable – but the Fair Work Commission has also warned employers about following the right dismissal procedures.
The Commission has heard the case of an Australian man blaming his Iraqi work colleague for the conduct of the Islamic State terrorist organisation in Syria.
Describing his comments as stupid, the FWC said it was no longer appropriate for employees to ‘stir up’ or ‘take the micky’ out of their colleagues based on their sex, religion, culture or heritage in order to get a reaction.
CCIQ Employer Assistance experts said the recent case highlighted the need for employers to develop and maintain an acceptable workplace culture, as well as the risks employers face in dismissing an employee without following due process.
Toll Holdings Ltd, trading as Toll Transport, terminated the man’s employment after finding he had made racist comments regarding religion and ethnicity. Specifically, he had blamed an Iraqi work colleague, for the conduct of the Islamic State in Syria.
After he was dismissed, he brought an unfair dismissal claim requesting reinstatement.
The FWC found that Toll had had a large number of these types of incidents and was a workplace that was “yet to accept multiculturalism in its culture”. The FWC noted that, “It is no longer appropriate for employees to ‘stir up’ or ‘take the micky’ out of their colleagues based on their sex, religion, culture or heritage in order to get a reaction”.
During the hearing it was noted that both men had previously both made inappropriate remarks toward each other with these matters resolved amicably on the shop floor and without formal warnings.
The Commission found that, while the main protagonist had previously been spoken to about his inappropriate conduct, he had not been given any formal warning in relation to this behaviour.
Furthermore, complaints of a similar nature had arisen against him during the investigation process which were not investigated.
Evidence of a failure by Toll to maintain an acceptable workplace culture and its flawed investigation process further supported the conclusion that the dismissal was, in the circumstances, either “harsh, unjust or unreasonable”.
Accordingly, the FWC ordered that the employee be reinstated with no loss of continuity of service.
The FWC found that, given this hostile environment and inappropriate workplace culture, he thought he was being funny or was looking for a reaction, but, in fact the remarks were stupid.
The FWC ordered that the employee:
• be reinstated;
• be back-paid for 16 weeks, less 9 weeks as a penalty for his misconduct; and
• have a first and final warning placed on his record for 12 months.
CCIQ View Point
All employers should be able to demonstrate that they have taken “all reasonable steps” to prevent discrimination and harassment within their workplace. This includes fair grievance handling.
If you have a workplace culture that condones rather than condemns racial slurs and discrimination, it will be difficult to dismiss an employee for engaging in such conduct.
Carefully monitor your workplace to ensure that it complies with anti-discrimination laws. Failure to do so will also expose your organisation to liability for your employees’ discriminatory conduct.
Employers are encouraged to call the CCIQ’s Employer Assistance Team on 1300 791 988 or email at email@example.com for any assistance regarding claims of discrimination, disciplinary processes, investigations and terminations.
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