Anti-Discrimination Board of NSW


​​Employee making racists comments reinstated after lack of ‘fair go’ 

Having policies and procedures will not in necessarily avoid problems unless they are properly implemented, as a recent case in the Fair Work Commission has shown.


Under NSW anti-discrimination law, an employer can avoid liability for the discriminatory actions of its employees if it has taken ‘all reasonable steps’ to prevent them. Reasonable steps are generally accepted as:
having policies and procedures in place, 
training all staff in these, and 
ensuring that they are implemented.

However, there are many cases where an employer thinks they have followed the right procedure but they are found to have treated an employee unfairly. This was shown in a recent case under the Fair Work Act, which has similar provisions.

An employee had been dismissed for serious misconduct after making racist comments to a co-worker, including: ‘Does Islam say to kill?’ and ‘I enjoy seeing people have their heads cut off. Do you enjoy it too?’ The co-worker had complained and the matter was investigated. The employee who had been dismissed accused the co-worker of expressing personal and political beliefs at work, including blaming the Americans for events in Afghanistan.  

The investigation included earlier incidents between the two men, after which the employee had been spoken to by his team leader and had agreed to stop discussing such matters. Eventually the allegations were found to be substantiated. He was found guilty of a ‘pattern of unacceptable behaviour’ and was dismissed with one month’s pay in lieu of notice.

The employee went to the Fair Work Commission and claimed that his dismissal was unfair. The Commissioner found that his comments had caused his co-worker distress and anxiety, and were a valid reason for his dismissal. However the legislation also required the Commissioner to consider whether the dismissal was ‘harsh, unjust or unreasonable’. 


The Commissioner said that the earlier allegations had been resolved by agreement and revisiting settled disputes was inappropriate and unfair. It also found that he had not been given a ‘fair go’ as he had not been given a formal warning before being dismissed, as other employees had in similar situations. It ordered the employee to be reinstated with a first and final warning. It thought that the co-worker should also receive a first and final warning.

However on appeal, the full bench of the Commission found that the Commissioner had made a mistake in not taking the earlier incidents into account. It said that each incident involved essentially the same behaviour and was therefore relevant. An employer can’t generally dismiss an employee for earlier misconduct if it didn’t do so at the time, but the earlier behaviours were still relevant to whether or not to dismiss the employee for the new incident.

The Full Bench also found that the risk that the worker would repeat the conduct should have been taken into account. It sent the case back to a single Commissioner for reconsideration of whether or not the dismissal was harsh, unjust or unreasonable. 

The second Commissioner said that disciplinary action should have been taken in the past so that the employee was fully aware that his conduct was unacceptable. By not taking such action, the employer undermined its Code of Practice. The Commissioner said that cultural awareness required more than just policy and ‘it is through training and discussion of issues that knowledge is gained, understanding is reached and tolerance found’. 

The commissioner found that while there was a valid reason for the employee’s termination, it was severe given the absence of earlier punishments. She ordered his reinstatement to a similar position in a different area. She also ordered that he attend a refresher training course on the organisation’s policies as part of his return to work.  
Toll Holdings et al v Joseph Johnpulle [2016] FWCFB 108; Johnpulle v Toll Holdings Ltd [2016] FWC 1507 (11 March, 2016)​​

​​​​​​Back to May 2016 - Equal Times ​Newsletter​​​​

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