The Fair Work Commission (FWC) recently ordered the reinstatement of an employee who made racist comments determining their dismissal as harsh, unjust and unreasonable.
In Martin Bajelis v Reserve Bank of Australia (2020) FWC 3740, the employee claimed unfair dismissal after being dismissed for inadvertently sending 2 racist messages to a group of 23 RBA employees who were part of a WhatsApp group, instead of to his wife, who the text message was intended for.
Although the messages were only visible for 3 minutes before they were deleted by the employee following the realisation of the error, it was still long enough to be seen by a number of employees with one being able to respond about the inappropriateness of the content. The employee also immediately apologised for their error.
The employer undertook an internal investigation which resulted in a disciplinary meeting with the employee. At that meeting the employee explained that he and his wife and been going through a stressful time with their son who is having difficulties with the intensive learning style expected within their Kumon training. It was simply an observation based on the difference between his son’s style against his Chinese peers. It was not meant to be a racist opinion.
The RBA determined the outcome of termination based providing reasons including:-
- The racist views the employee continues to hold
- The serious impact of the 2 messages on their work colleagues
- The perceived ongoing undermined working relationship with his colleagues
- Previous interactions with colleagues that the employee had been warned or counselled about
- The behaviour was inconsistent with the employer’s code of conduct and workplace behaviour policies.
In finding their decision the FWC made consideration to the views of the employee, any future views, any offense and impact caused, and the process followed by the employer.
It was found that whilst the views were essentially racist, the employee accepted that the messages were not polite and his immediate demonstration of remorse and deletion of the messages showed that even if the employee held those views, they were views held privately and not a valid reason for termination.
The FWC further found that the employer had failed to establish the ‘serious offence’ caused that was included in the letter of termination.
One of the 2 employees who were impacted by the messages did not express any offence immediately, attended lunch with the employee 2 days later and did not mention their impact until prompted to do so by another employee a week later. The second employee whilst detailing their discomfort at the idea of the employee returning to work with them, expressed this was for a different reason and not due to the messages.
The employer had not actually counselled or warned the employee with respect to previous alleged conduct as provided as a reason for termination and the breach of the policies was deemed to be unintentional and inadvertent rather than wilful or deliberate.
Procedural fairness was also in question as the employee whilst provided with a disciplinary meeting as part of the internal investigation, was not provided with opportunity to give response in the termination meeting. The employer ran the meeting using a prepared script detailing their findings and reasons for termination and handed a termination letter to the employee at that time.
In considering the dismissal as harsh, the FWC determined the circumstances surrounding the Incident, the inadvertent sending of the messages, the quick action of the employee to delete the messages and apologise twice, and the personal economic consequences for the employee and his family.
Overall the determination was that the dismissal was harsh, unjust and unreasonable within the meaning of the Fair Work Act and procedurally unfair in both the investigation and the meetings undertaken by the employer.
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