A Darwin business that stopped offering an employee shifts after he called a co-worker a “racist bitch” says the Fair Work Commission decision to make it to pay $3,900 in compensation for unfairly dismissing him is “unfortunate” given the company did what it could to resolve the issue.
In August, the Commission decided a casual employee at QBar Darwin was unfairly dismissed after the business stopped offering him shifts following a series of events prompted by comments he made about the bar manager when she was leaving work in February 2017.
The Commission heard that on the day in question, the manager and a number of other staff, who are all of Estonian background, were leaving to go to an exercise class, and the manager was saying goodbye to some staff in Estonian.
The worker who was later dismissed said goodbye to her, but when she did not reply he said to another colleague, “she can be a racist bitch”. This was in earshot of the manager and other team members.
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The manager who was called a “racist bitch” confronted the worker about the comments the next week, and the Commission heard the worker responded to her by saying that was how he felt about her.
The owner of QBar heard about the incident and made attempts to hold a meeting with both parties to resolve the concerns, but the worker who made the comments did not want to engage in such a meeting.
The business ultimately stopped offering the worker shifts from March 7, 2017, based on his refusal to apologise or discuss concerns about his language. The business also said it needed to cut casual hours from the business due to financial constraints.
However, on reviewing the regular nature of the worker’s hours within the business, Fair Work Commissioner Michelle Bissett decided he was a “regular and systematic” employee of QBar and was entitled to protection against unfair dismissal, despite being called a casual worker.
The Commissioner found while the worker’s language was not acceptable in the workplace, the decision to stop offering shifts was “not a sound decision but one taken perhaps out of frustration”.
The actions of the worker could “best be described as inappropriate and unprofessional” and as such, “warranted some reproach and warning as to his conduct”, the Commissioner said, but not automatic dismissal from the role.
The business was ordered to pay the former employee $3897 plus superannuation for the unfair dismissal. This is a 30% reduction in the amount of compensation the Commissioner calculated the worker would otherwise be entitled to, with the Commissioner choosing to dock the amount due to his language and his “refusal to engage” with management around their concerns about his actions.
Speaking to SmartCompany this morning, a spokesperson for QBar Darwin said the situation had caused stress to other staff members in the business, and the venue had done its best to mediate the situation as well as it could.
The case has seen the business overhaul its company handbook and policies around steps taken when disputes arise.
SmartCompany was unable to contact the worker for comment prior to publication.
Make workplace policies and warnings clear
Managing director of Workplace Law Athena Koelmeyer says this case demonstrates the difficulty businesses have in ensuring workers are not subject to aggressive or inappropriate language at work.
“That sort of language is unacceptable and I think from the decision it is clear the worker was not sorry,” she says.
“But I think in this case what the Commissioner is saying is that termination is reserved for when you’ve tried everything else.”
Koelmeyer advises all businesses to develop and regularly communicate codes of behaviour to staff, which they can point to in the event a dispute comes up about conduct.
“I suggest the minimum you should have is a code of conduct that sets out the bare bones of what you expect from employees where they are at work, and you make sure that is available to all employees,” she says.
Once this is established, if an employee acts in a way that could garner a warning, Koelmeyer suggests such a warning is delivered quickly and clearly to the worker.
“In this case, I think one possibility would have been to issue a first and final warning, even requiring that the worker apologise,” she suggests.
With tolerance a big issue in the workplace in terms of race and other characteristics like gender, sexuality and marital status, Koelmeyer advises businesses to make it clear to workers that they must be courteous to each other, and avoid simply placing codes of conduct on staff intranets where nobody will read them.
“Perhaps have something that is on display in a staff area,” she suggests.