It goes without saying that employees should treat each other with respect and courtesy in the workplace.
In a recent decision, the Fair Work Commission (FWC) was tasked with considering a claim from a dismissed employee who alleged that remarks he made in the workplace were not offensive and did not justify his dismissal - Chileshe v EnergyAustralia Pty Ltd [2019] FWC 7622.
The employee in this case was a customer save consultant and had been working for his employer for about two years. In 2018, as part of his employment, the employee attended a training course with his colleagues about identifying customer concerns over telephone. The training required the attendees to diagnose a customer’s issues as though they were a doctor.
In the course of the exercise, the employee said to the trainer “Ask these guys”, meaning the three colleagues sitting next to him who he believed to be Indian. The trainer asked, “Why these guys?” and the employee responded, “They’re Indian, and all Indians are doctors.”
One of the colleagues said that they were not Indian to which the employee replied, “You can be a taxi driver then.”
After the training session, an attendee complained to the employer about the comments. An investigation was conducted and the employee was issued with a first and final warning stating that the employee’s remarks breached the employer’s code of conduct, values and diversity policy.
Then, in December 2018, the employee made an unsolicited comment to a colleague in words to the effect of, “People like you can’t get pregnant.” The comment implied that, due to the individual’s sexual orientation, she would not be able to have children. The colleague gave evidence that she was upset by the comment and felt it was dehumanising.
Finally, in March 2019, the employee attended a team huddle where colleagues were asked to share something personal about themselves. Before one of the employee’s colleagues (who was of Indian decent) could speak, the employee said, “What, don’t tell us you’re related to Deepak Chopra.” The colleague said, “That’s racist, Richard”, and the employee responded, “Oh, sorry.”
Another colleague who was present at the huddle made a complaint about the employee’s comments.
An investigation was conducted by the employer into the two incidents and the employee was invited to respond to the allegations against him. Ultimately, the investigation concluded that the employee had made the comments as alleged and they were in breach of the employer’s code of conduct and diversity policy.
The employee was invited to show cause as to why his employment should not be terminated. The employee attempted to argue that the comment about his colleague being able to get pregnant was in response to her emotional state (having recently broken up with her girlfriend) and was not in reference to her sexuality. In respect to the comment in the huddle, the employee claimed that his colleague was not offended and his comment was not offensive.
The employer ultimately decided to dismiss the employee on the basis that he had received an earlier first and final warning for the same conduct and his later comments amounted to further breaches of the code of conduct and diversity policy.
Before the FWC, the employee attempted to argue that his comments were not offensive because his colleagues did not, or should not, have taken offence. Specifically, the employee claimed that his colleague in the huddle did not take offence and he had a joking relationship with his female colleague and they could say anything to each other. The colleague gave evidence that their relationship was non-existent and his comments were about her sexuality, not about her emotional state.
The FWC considered the comments objectively, noting that the whether or not the employee’s colleagues were offended would not be determinative of whether or not his statements breached the employer’s code of conduct and diversity policy.
The FWC held that the employee’s comments were offensive and discriminatory, and involved stereotyping on the basis of race. For this reason, the FWC was satisfied that the employee breached the employer’s code of conduct and diversity policy, which amounted to a valid reason for his dismissal.
The employee’s unfair dismissal application was dismissed.
Lessons for employers
Although it may seem like something you should not have to spell out for employees, employers should always make clear to employees that they expect them to treat each other with respect and courtesy and avoid remarks that are potentially offensive or discriminatory.
One method for setting expectations is to develop a code of conduct, clearly stating the behavioural expectations on employees and the consequences for failing to meet those expectations.
When incidents of unacceptable behaviour do occur, employers should act swiftly but fairly. Allowing an unacceptable pattern of behaviour to develop and continue can have a detrimental impact on the mental health of employees and can expose an employer to a range of liabilities for failing to provide a safe workplace.
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