Mind Your Language: The importance of consistency

June, 2015

By Clayton Payne

Are racially motivated barbs acceptable in the modern workplace?

What if a worker engages in this behaviour? And should all complaints, no matter who is making them, be treated in a consistent manner?

Such matters were recently dealt with by the Fair Work Commission in Johnpulle v. Toll Holdings Ltd.

In this case, the worker in question had commenced work for the employer in 2008 and had no significant history of previous performance issues. Despite that, the worker’s employment was terminated after he had allegedly made “racist, sectarian, and inappropriate” comments to another work colleague.

Commissioner Riordan also found that the investigation process into the complaints against the worker undertaken by the employer was “flawed”.

The worker was presented with a show cause letter which referred to a number of related incidents, three of which the Commissioner found were not of the same level of inappropriateness as that of the later comments the worker made. The Commissioner also noted that all three issues had been previously settled by way of a shop floor resolution, whereby the worker acknowledged the comments he had made and indicated that he would not make them again.

The Commissioner also went on to find:

Since the 1970s and 1980s Australian workplaces have been forced to transition from the old fashioned prejudicial Anglo-Saxon male domains. It is no longer appropriate for employees to “stir up” or “take the Mickey” out of their colleagues based on their sex, religion, culture or heritage in order to get a reaction. It appears to me that this is the type of conduct in which (the worker) has participated. He was under the misconception that he was being funny or was looking for a reaction. In fact, he was just being stupid”.

While the Commissioner found that the employer had a valid reason to terminate the worker’s employment, the Commissioner also noted that the person who had made the complaint against the worker, had also engaged in similar conduct previously, and that there had been a lack of consistency in how this was dealt by the employer when compared with the worker’s situation.

Accordingly, the Commissioner found that the termination of the worker’s employment was harsh, unjust or unfair.

Among other orders, the worker was reinstated to his position with no loss of continuity of service.

Conclusion

Not only does this decision demonstrate that the courts and tribunals consider that racially charged banter is not acceptable in a modern workplace, any procedure dealing with relevant complaints should be dealt with consistently.

The decision shows that applying such policies and procedures consistently is extremely important in demonstrating the fairness of any later move to terminate the employment of a worker.

As stated in previous alerts, properly investigating such matters before any substantial disciplinary action is taken is also crucial.

Contact Mills Oakley

For more information, please contact:

Ross Levin | Partner
Melbourne
T: +61 3 9605 0070
E: rlevin@millsoakley.com.au

Malcolm Davis | Partner
Sydney
T: +61 2 8035 7932
E: mdavis@millsoakley.com.au

Adam Lunn | Partner
Melbourne
T: +61 3 9605 0868
E: alunn@millsoakley.com.au

Lisa Anaf | Partner
Melbourne
T: +61 3 9605 0857
E: lanaf@millsoakley.com.au

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