Racial joke

[mark russ]

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...". The team leader is indigenous. The supervisor apologized 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? The alleviating circumstances are that the supervisor has unblemished work history and hasn't been reprimanded for similar issues in the past.

Your thoughts would be much appreciated.

[Moz]

Mark, I'm no expert, but judging by some Fair Work decisions in the past, I think you should be cautious about instant dismissal. In one case I recall where an employee was dismissed for being verbally abusive to his boss both face to face and on social media (not joking). Fair Work found that bad language and insults (but not racial slurs) were common in the particular workplace, and had been tolerated in the past, and that the employer did not have a clear policy on social media use in relation to the workplace, therefore they decided it was overly harsh to dismiss someone. As a result the person was re-instated.

So the short answer is, 'it depends' (as usual! )

[mark russ]

Mark, I'm no expert, but judging by some Fair Work decisions in the past, I think you should be cautious about instant dismissal. In one case I recall where an employee was dismissed for being verbally abusive to his boss both face to face and on social media (not joking). Fair Work found that bad language and insults (but not racial slurs) were common in the particular workplace, and had been tolerated in the past, and that the employer did not have a clear policy on social media use in relation to the workplace, therefore they decided it was overly harsh to dismiss someone. As a result the person was re-instated.

So the short answer is, 'it depends' (as usual! )

Thanks Moz.

These are the circumstances. Yours and other members' thoughts would be much appreciated.

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 dark tan).

Person C apologizes to B soon after that.

The company has very clear policies on antidiscrimination, bullying and harassment.

[Tiger]

Thanks Moz.

These are the circumstances. Yours and other members' thoughts would be much appreciated.

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 dark tan).

Person C apologizes to B soon after that.

The company has very clear policies on antidiscrimination, bullying and harassment.

Agree with Moz. Dismiss and you will surely have an unfair dismissal on your hands and undoubtedly you will lose! In this (my view) ridiculous age of political correctness gone made, it is essential to have a well drafted policy in place which covers all contingencies, is communicated well to employees, ensuring everyone knows where they stand.
Yep, was involved in the mining industry for a few years, know how the culture is but still no excuse if "jokes" go bad and they can very easily. No use running around after the horse has bolted. Get your house in order and ensure you have policies, review them at least annually and update when necessary and ensure your staff are fully briefed.
Tiger

[mark russ]

Agree with Moz. Dismiss and you will surely have an unfair dismissal on your hands and undoubtedly you will lose! In this (my view) ridiculous age of political correctness gone made, it is essential to have a well drafted policy in place which covers all contingencies, is communicated well to employees, ensuring everyone knows where they stand.
Yep, was involved in the mining industry for a few years, know how the culture is but still no excuse if "jokes" go bad and they can very easily. No use running around after the horse has bolted. Get your house in order and ensure you have policies, review them at least annually and update when necessary and ensure your staff are fully briefed.
Tiger

Hi Tiger,

Is there an employment law that would support the view that this type of a racist comment doesn't warrant a dismissal?

I would love to hear from you or others in this forum that are familiar with the employment law.

[Tiger]

Probably not - you'd have to look outside of the Fair Work Act. What is fact though, under the FW Act, is unless there has been serious fraud, assault or worse, generally FW would not consider it 'serious and wilful misconduct'. Onus is on employer to prove otherwise in a claim and failure to be able to show robust policies, education of employees about such policies, etc., the employee bringing the claim will likely be recommended for reinstatement or some kind kind of penalty made on the employer (ie Employee gets money out of the employer - as unfair as that may sound - the amount dependent on the employee's length of employment.
Tiger