Poor taste jokes should be taken seriously​

Legal Case - Sexual harassment

The dismissal of a disability worker who made a joke about rape in the context of ‘light-hearted banter’ has been upheld by the Fair Work Commission.​​

The facts

A disability worker with 18 years’ service was dismissed after making a joke to a co-worker about sexual assault, in the context of light-hearted banter after a WHS incident. He said: ‘So you’re ok then? You’re not going to lose the plot and go home and rape your daughter or anything like that?’ 

A colleague who overheard the discussion complained to the CEO, who began an investigation. This found that the colleague had previously told the disability worker that she was not comfortable with his sense of humour. 

She had already complained about two other incidents: one where he wore an apron with a picture of a woman’s breasts on it to a work Christmas party, and another involving him preparing a ‘hurt feelings report’ which mocked the perceived sensitivities of other employees and made offensive comments about women. 
 
The disability worker was dismissed on the grounds that his comment was completely inappropriate, especially in view of his work with people with a disability, some of whom had been sexually abused. It also breached the organisation’s code of conduct and duty of care. The man complained to the Fair Work Commission that this dismissal was unfair. ​

Decision

The Commission upheld the employer’s decision. It found that the employer could no longer trust the employee or have confidence in his ability to represent the organisation or interact with its vulnerable clients. 

It accepted that:​

  • The employee deliberately intended to embarrass his colleague
  • He dishonestly misrepresented what he’d done by saying that he didn’t know the colleague was within earshot    
  • He failed to grasp the seriousness of his behaviour or its effects on the people around him, including clients of the organisation
  • The employer could therefore no longer rely on his judgement in relation to his exchanges with co-workers and clients.

Take away points

  • Employers are responsible for providing a safe and appropriate work environment for all employees, and minimise the risk of genuinely offensive language being used.
  • Complaints can arise where an employee has observed the use of offensive language, even if it was not directed at them personally.
  • Anyone who has been told that his or her jokes or behaviour are making co-workers, customers or clients uncomfortable should stop that behaviour immediately.
  • Whether or not jokes in poor taste will justify dismissal depends on the individual circumstances of each case.
Claus-Dieter Hengst v Town and Country Community Options Inc [2016] FWC 194 (19 January 2016) 

Back to August 2016 - Equal Time Newsletter​​​

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