AREEA examines two recent decisions of the Fair Work Commission, both concerning the termination of employment following disrespectful and inappropriate conduct in the workplace.

The Commission found there was a valid reason for dismissal in both cases, but found the dismissal in one of the matters was unjust and awarded compensation.

With differing outcomes turning on the procedure followed by the employer, these cases highlight the importance of ensuring procedural fairness is followed meticulously when taking action following allegations of inappropriate behaviour in the workplace.

Commission backs employer’s “balanced and properly considered” dismissal

The first decision concerns an employee who worked as a freight handler/forklift driver for StarTrack, a large parcels, freight and logistics company.

The employee was dismissed for habitually using terms and phrases in the workplace which were racist, degrading and disparaging towards co-workers. These included using phrases such as “row your canoe back home”, and referring to co-workers by highly offensive racial slurs.

The employee admitted the behaviour but attempted to defend it, saying it was “just comedy” and no one had complained.

Commissioner Cambridge found there was a valid reason for dismissal, saying of the applicant’s attempted justification: “Such an attempted defence or justification of abhorrent behaviour is an approach that disregards the fundamental wrongdoing, and it fails to appreciate that the victims of the wrongdoing do not complain because they feel powerless to prevent the conduct”.

Despite the employer conducting a thorough investigation and careful show cause process, the employee argued that he was denied procedural fairness, pointing to a range of factors including allegedly out of date policies and procedures.

The Commissioner disagreed, finding “the process adopted by the employer was without any procedural deficiency.”

“The soundness of the procedure was reflected in the fact that the employer ultimately determined that the behaviour of the applicant was misconduct as opposed to its initial contemplation of serious misconduct.

“The lesser finding of misconduct as opposed to serious misconduct emerged as a result of the careful and balanced consideration undertaken by the employer whereby it had appropriate regard for all factors surrounding the employment and circumstances of the applicant.”

The Commission found the dismissal was not unfair, and dismissed the application.

Lack of appropriate warnings renders dismissal unjust

The second decision concerns an employee of the Department of Home Affairs, who worked at Perth Airport and was responsible for a number of duties, including processing aviation passengers and Tourist Refund Scheme claims.

Over a period of 19 months, the employer received four particularised complaints about the employee’s behaviour towards passengers at the Perth Airport. Such complaints included instances of the employee being discourteous, unprofessional and rude to passengers, and making comments deemed as racist. For instance, when processing a passenger’s refund claim, making a comment to the effect that the passenger “had probably done this many times”, which the passenger felt was made on the basis of her race and nationality.

Commissioner Williams found there was a valid reason for dismissal, observing the employee’s behaviour “was in each of the four instances disrespectful and inappropriate”.

However, the Commissioner found that the dismissal was unjust, because “at no stage did [the employer] specifically warn [the employee] that further instances of disrespectful and inappropriate behaviour when dealing with passengers could result in his employment being terminated”.

In considering the employee’s request that he be reinstated, Commissioner Williams observed that the employee had not demonstrated any remorse for his behaviour, rather in his response to the complaints he “aggressively criticised those passengers who have complained about him”.

In these circumstances the Commission declined to order reinstatement, instead ordering twelve weeks’ compensation, halved to $4,574 after taking into account the employee’s misconduct.

Implications for employers

It is positive the Commission in these decisions is reinforcing that disrespectful behaviour such as the types mentioned above is not appropriate in the workplace.

The ability for an employer to take action to ensure they maintain a safe and healthy work environment for all is an important one.

What is apparent from the above cases is that the outcome of a matter can turn on the procedures followed by an employer when responding to such behaviour. Numerous cases have shown that despite having a valid reason for dismissal, deficiencies in the process can lead to a remedy being granted – including in some cases reinstatement.

With discretion and the option to reinstate at the hand of a Fair Work Commission member, it is vitally important for employers to have all their ducks in a row. This includes having up to date policies, procedures and workplace training, and if responding to inappropriate workplace conduct, a thorough investigation and show cause process, including giving due consideration to mitigating factors.

For more information or advice about the themes covered in this case summary, contact Workplace Relations Consultant Ingrid Fraser at [email protected].