Unblemished work histories and unfair dismissal claims – A lost cause for employers?

June, 2016

By Clayton Payne, Special Counsel.

Consider this scenario, the employment of a worker with a lengthy and unblemished work history is terminated.

It is alleged that the conduct leading to the termination involved the worker engaging in verbally abusive conduct towards a co-worker.

Is it the case that the worker in question will likely succeed in their unfair dismissal claim?

These matters were recently considered by the Fair Work Commission (Commission) in Sayers.

The Facts

The worker in this scenario had been employed by the employer for fifteen years in a number of positions. His employment as a Warehouse Employee was eventually terminated on the grounds of serious misconduct.

In this instance, the employer alleged that the worker was in breach of the employer’s Code of Conduct and Anti-Harassment, Bullying and Discrimination policy (Policies).

The worker allegedly subjected a co-worker to verbal abuse, along with threats of violence.

During the incident which subsequently led to the worker’s termination, the worker allegedly verbally abused a co-worker calling him, among other things, a “dirty gringo c***”, said that the co-worker was “…nothing but a lazy c***”, and that “Nobody (liked him) anyway…” During this incident, he also allegedly threatened the co-worker by saying, “I’ll fix your red wagon”.

The worker agreed that he was aware of the tone and tenor of the Policies and that the conduct giving rise to his dismissal was in contravention of those Policies.

However, the worker claimed that the reference to the word “gringo” directed at his co-worker was not intended to be a racial slur, but was “just a slang word” and the meaning of the term was inconsistent with the co-worker’s nationality.

The worker also claimed that his actions arose out of frustration caused by an ongoing failure of the employer to manage the workplace behaviour of his co-worker.

Furthermore, the worker contended that the dismissal was harsh in the context of his “unblemished work history and commitment and dedication to [the employer] across fifteen years of employment” and sought reinstatement to his previous position.

Decision

Deputy President Clancy, after giving consideration to the meaning of the word ‘gringo’, found that the term in the context of its surrounding words,

“…was one of abuse and disparagement irrespective of it being a racial slur”.

Nonetheless, the worker was held to have been racially abusive since the reference was found to be,

A term associated with racial and/or ethnic origins”,

and the ability to claim that such a slur was misinterpreted or not intended to be offensive could not be justified.

The Commission found that the worker’s explanation for his actions, in that they were caused by frustration, was inconsistent with the fact that the worker was a delegate of a trade union and on a number of occasions had made complaints about the performance of various co-workers.

The worker was found not only to be familiar with the process of complaining about co-workers, but also comfortable with escalating matters until they were appropriately dealt with.

After considering all relevant matters, the Commission found that the termination of the worker’s employment was not harsh, unjust or unreasonable and the application was dismissed.

Conclusion

Once again, this case highlights the importance of having robust policies and procedures in place dealing with appropriate workplace behaviour.

Aside from having such policies and procedures in place, it is also extremely important that workers are made aware of the policies and procedures, understand the behaviour expected of them, and importantly, understand the consequences of breaching such policies and procedures.

This case demonstrates that even where the termination of employment involves a long standing employee with an unblemished record, their conduct, even on one given occasion, may justify termination, where it contravenes important employer policies and procedures.

Contact Mills Oakley

Melbourne


James Price | Partner 
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E: jprice@millsoakley.com.au

 


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