Masking racism as “banter” won’t cut it anymore says the Fair Work Commission

3 December 2018

A line is crossed when race or ethnicity is included in any communication with co-workers.
A line is crossed when race or ethnicity is included in any communication with co-workers.

In this update, we look at whether racist comments in the workplace can constitute serious misconduct warranting dismissal.

Background

StarTrack Express Pty Limited (StarTrack), Australia’s largest parcel delivery service provider, successfully defended an unfair dismissal claim in the Fair Work Commission (FWC) because it was able to prove that the dismissal of an employee was not harsh, unjust or unreasonable.

StarTrack’s position

StarTrack submitted that it had found that, Mr Michael Taylor (employee of StarTrack for 17 years), had used the following racial slurs in the workplace:

  • “towel head”;
  • “coconuts”;
  • “gooks”;
  • “put the pallet over there you black c***”
  • “go back where you came from you black c***”
  • “fuck off to where you came from”; and
  • “row your canoe back home you fucking c***”.

After making the above finding, StarTrack provided an opportunity for Mr Taylor to respond, and then proceeded to terminate his employment on the grounds of serious misconduct.

In light of the findings around Mr Taylor’s conduct, and the process it undertook during the investigation, StarTrack submitted that the dismissal was not harsh, unjust or unreasonable.

In the alternative, the Transport Workers’ Union of Australia (TWU), on behalf of Mr Taylor, argued that Mr Taylor engaged in “well-meaning workplace banter which was not intended to offend but rather to entertain" and argued that no individual had actually complained about his comments. Furthermore, the TWU argued that the termination was excessive because casual swearing and racial slurs were common place in this workplace, and that this language was enjoyed by others.

FWC says the actions did not constitute an unfair dismissal

Ultimately, the FWC held that the dismissal was not unfair, harsh and unreasonable because:

  • “a line is crossed when race or ethnicity is included in any communication with co-workers”;
  • the argument that the comments were well-intentioned “does not provide a defence or justification for conduct that is fundamentally unacceptable”; and
  • the employee had “failed to comprehend or even remotely understand the fundamental malfeasance of his conduct”.

Furthermore, Commissioner Cambridge was very critical of the TWU’s arguments in favour of Mr Taylor. On this point, Commissioner Cambridge stated:

The attempt to defend or otherwise justify the applicant’s use of racially offensive language on the basis that the applicant didn’t believe that it was harmful, and that no one had complained, is an approach that has regrettable and disturbing parallels with the recent exposure of incidents of sexual harassment in the employment context, and which has created what is referred to as the “#MeToo movement.”

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.

Further to the above, Commissioner Cambridge referred to the email signature on TWU’s emails that contained a statement that “I swear never to commit, excuse or remain silent about violence against women”, and suggested that in the circumstances of this case “such a mantra should be expanded to include: “I swear never to excuse racism’”.

Accordingly Commissioner Cambridge found that the dismissal was not harsh, unjust or unreasonable, and dismissed the case.

Lessons for employers

Racism and bullying can have a significant and detrimental impact of people - personally and professionally. Left unaddressed, racism in the workplace can lead to absenteeism, staff turnover, a culture of bullying, and discrimination, bullying and worker’s compensation claims.

In light of the above, we recommend that employers:

  • review their Code of Conduct and Equal Opportunity policies to ensure that inappropriate language (including racial slurs) are specifically listed as being inappropriate in the workplace (and the consequences of breaching this);
  • train their employees on the above policies to ensure that they understand what is and isn’t appropriate workplace communication (and the consequences of breaching this); and
  • consider whether your board, committee or management should make a public statement to all employees, volunteers and contractors, stating that the organisation has a zero tolerance to racism and violence, and where survivors can find support.

These steps can help to create safe and inclusive environment for all staff, but will also help to ensure that you can respond swiftly and effectively when employees behave in an inappropriate and unlawful manner

How we can help

If you’d like further information about what you can do to create a safe and inclusive work environment or for assistance responding to a complaint of inappropriate behaviour, please contact our Practice Leader, Skye Rose on (03) 9843 0418, or fill out the enquiry form below.

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Workplace Relations