Crime and Punishment: FWC says unacceptable comment in the workplace didn’t warrant dismissal

Managing workplace behaviour is a balancing act for employers and HR. Some workplace policies provide examples of unacceptable behaviour and how to deal with it, but these policies cannot hope to address all types of behaviour or prescribe every appropriate redress. Employers need to exercise some judgment when they become aware of inappropriate behaviour and consider carefully whether an employee’s conduct will warrant disciplinary action and, if so, what type.

In a recent case before the Fair Work Commission (FWC) (Phillip Coffey v QBar Darwin Pty Ltd [2017] FWC 4312), Commissioner Bissett found an employer’s decision to stop giving shifts to a casual employee amounted to termination, and that termination was not an appropriate response to the employee’s conduct. 

Mr Coffey (the Employee) was a casual café supervisor at QBar Darwin Pty Ltd (the Employer). He alleged he had been unfairly dismissed when his Employer stopped giving him shifts citing poor business conditions and a strained work environment.

Prior to the Employee’s dismissal he had made complaints to the café owner that the manager, who was of Estonian heritage, was hiring only Estonian staff and speaking to those employees in Estonian, to the exclusion of everyone else. When the café owner asked the manager about this, she denied the claim and stated that she was hiring purely on merit.

The Employee had also conducted his own “investigation” which included talking to ex-employees and customers about whether the cultural exclusion was apparent in the café.

On one occasion, the Employee had said “see ya” to the manager as she was leaving. The manager was talking to other Estonian employees at the time and did not reply. The Employee then said to his work colleague “she can be a racist b*tch”. This comment was overheard by a friend of the manager and relayed to her.

Following the incident, the café owner attempted to resolve the tensions by having both employees attend a meeting, however the Employee refused to do. Eventually, the Employer decided to stop giving him shifts.

During the FWC proceedings, the Employee admitted to making the comment and understood that it was not one that he should have made. He claimed he was only expressing an opinion and he was being made out to be the “nasty one”.

Commissioner Bissett found the Employee’s comment about his manager and his discussion of workplace issues with customers were the most serious of his actions. However, even though they were “unacceptable” and could have done serious damage to the manager’s reputation, there was no evidence to say that they actually did damage her reputation. The Employee’s actions were, at best, inappropriate and unprofessional.

Commissioner Bissett acknowledged that the dismissal may have been borne out of frustration with the Employee’s refusal to co-operate, but “[w]hilst Mr Coffey contributed to this frustration such a matter should be properly managed in the first instance before dismissal might be justified.”

Commissioner Bissett found the dismissal to be unfair.

Remember...

The punishment should always fit the crime, this is the essence of substantive fairness.

Employers should consider the full circumstances of an issue and the context in which an employee’s conduct has arisen when contemplating disciplinary action. There are a range of options that might be appropriate before termination is imposed, such as counselling, performance management and the issuing of warnings. Termination should be the last resort.

Lastly, in this case, the Employee had argued that “everyone swears” in the workplace and he was only being made out to be the “nasty one”. This type of argument should be a reminder to employers to regularly re-visit workplace policies and re-train employees on unacceptable workplace behaviour to avoid this type of defence from dismissed employees. 

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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