WA Racist Comment at Work - Gross Misconduct Under Employment Law?

Discussion in 'Employment Law Forum' started by Mate, 4 January 2019.

  1. Mate

    Mate Well-Known Member

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    Good afternoon all,

    I'm in a position to liaise with HR on a recent workplace complaint. One of my direct reports (who is a supervisor) made an inappropriate joke about another person (team leader). This occurs on a mine site and swearing is far from uncommon.

    There were four individuals involved in the conversation when the supervisor called the team leader "black c..t". The team leader is indigenous. The supervisor apologised shortly after that saying that it was a big mistake and that it was a joke.

    I would like to know whether this type of racial comment warrants a dismissal under employment law? The alleviating circumstances are that the supervisor has an unblemished work history and hasn't been reprimanded for similar issues in the past. The comment was not intended to offend the individual and wasn't threatening.

    These are the circumstances.

    Person A says to person B: you can't participate in the indigenous development program because you're not indigenous. Person A wasn't aware that B is indigenous.

    Person C joins the conversation addressing person B: So you're just a black c..t. (B has a dark tan).

    Person C apologizes to B soon after that. Person B accepted the apology however lodged a complaint a few days later.

    The company has very clear policies on anti-discrimination, bullying and harassment.

    Your thoughts would be much appreciated.
     
  2. Rod

    Rod Lawyer
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    Poor judgment, no prior history, said in light hearted/joking manner - probably just worth a warning.

    In some circumstances comments like this can be seen as an attempt to say you're one of us mates. A form of endearment.

    Tone, body language and manner means more than the words. If none of these indicate a racist undertone, definitely only a warning.
     
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  3. Mate

    Mate Well-Known Member

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    Thanks Rod, really appreciate it.

    Is there anything in employment law that would support this view?
     
  4. Mate

    Mate Well-Known Member

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    Thanks Rod, really appreciate it. Just a few questions if you wouldn't mind.

    1. Is there anything in employment law that would support this view (of giving a warning only)?
    2. Does the fact that the offender is a supervisor make the offence worse?
    3. Is demotion an appropriate action in this situation?

    Many thanks.
     
  5. Scruff

    Scruff Well-Known Member

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    You should also take into account mitigating factors such as whether or not the apology was voluntarily given. By that, I mean did C raise the matter with B who then apologised, or did C realise what they said without prompting from anyone else and approach B with an apology of their own accord. The little things are just as important as what was said.

    No offence intended here, but your biggest concern should be that you are probably not the right person to be handling this matter. That's proven by the fact that you came here for advice. In short, if you were appropriately qualified or trained to handle such matters, then you wouldn't be here. If I was an employee and found out about this, I can assure you that I would have questions - I wouldn't stand for someone handling matters like this if they don't know how to. Perhaps this is something you should raise with your employer - maybe ask for additional training if you are to be expected to handle issues like this.
     
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  6. Rod

    Rod Lawyer
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    The additional questions require information that hasn't been posted and is likely too detailed for replies through a forum.

    I will say though a supervisor is not really very senior, and a demotion can be a constructive dismissal.
     
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    #6 Rod, 5 January 2019
    Last edited: 5 January 2019
  7. Mate

    Mate Well-Known Member

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    For my own understanding, why is this not considered a gross misconduct while in some other seemingly much less serious examples people were fired? For instance, quite a few TV news hosts were fired for what I thought were simple slip of tongue comments, for example when a TV host referred to Chinese people as "dark haired, yellow people with slant eyes".
     
  8. Rod

    Rod Lawyer
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    The circumstances are totally different.

    The scenario you gave was possibly done in a joking manner (though bad taste) to a small group. TV presenters have audiences in 100,000s and have much more restrictions built into their contracts. The impact to the business of a media organisation is far greater than a miner/manufacturer in the bush.
     
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  9. Mate

    Mate Well-Known Member

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    Just an update, the case has been closed out with first and final written warning. So no more chances for the individual. A question for all legal people on the forum.

    The organisation has a very clear policy on bullying and harassment and all the staff need to go through the training on bullying and harassment. My understanding was that when companies have clear policies, that gives them legal teeth to handle serious issues like this that obviously breach the policy. Could you please explain this to a non - legal person?
     
  10. Rob Legat - SBPL

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    The simple answer is that it is not that simple. Summary termination needs to involve 'serious misconduct', but that is an imprecise term: some 'black', some 'white', and a lot of 'grey area'. Getting it wrong is a costly exercise for an employer, so they may err on the side of caution.

    Then, consider the degree of seriousness. It's not just that they breach the policy - but how and to what extent. Think of it this way (using extreme cases to make the distinction clear): Let's say the policy prohibits stealing. You have one employee who pinches a couple of boxes of paperclips for the kids' art project for school. You have another employee who has been siphoning off bits of the pay run for several years into a slush fund, and is about to permanently move to Brazil next week. Both are stealing - both are breaking the policy. One may get a warning. The other will get met by the police at the airport unless she's very lucky.
     
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