$29k compensation for ‘racist’ email sender
30 September 2014
An employee who used the company email system to send an offensive, anti-Muslim email has been awarded compensation of almost $29,000 after his dismissal was found to be harsh.
The employee did not dispute that he had sent the email which contained text which was “highly offensive to persons of the Muslim faith” as described by Deputy President Ingrid Asbury in the Fair Work Commission (FWC) Decision.
The employee remained unrepentant and only regretted that his actions had resulted in his dismissal, although Deputy President Asbury noted that the email had “real potential to damage [the company’s] reputation in Australia and internationally,” and had also “caused offence to at least one person and had the potential to offend others.”
Crucial in this case were the company’s actions prior to termination; the employer decided to terminate based on the belief that the employee had been formally warned after a similar incident and that adequate training had been provided to the individual.
Despite asserting that the company had provided training to the employee on appropriate behaviour and instruction on acceptable use of company IT and email systems, no record of his attendance at the training or his IT induction was produced by the employer, nor was any explanation given for the lack of records.
However, having heard the evidence from all parties, the Deputy President concluded that the “warning” given to the employee was more akin to an informal chat and was not a clear formal warning about his behaviour. It was apparent, she said, that the employee may not have understood that to continue sending emails of this nature might jeopardise his employment.
Furthermore, the employee did not accept that the contents of the email could have caused offence to any person who was not a “radical Muslim” and took issue with his email being described as “racist” as it referred to religion and not race.
There are several lessons to be learned from this case:
- Firstly, had the first discussion about the behaviour been conducted in a more structured and effective way, with a clear formal warning issued, the email which led to termination may never have been sent.
- Secondly, training which was comprehensive, assessed, recorded, and regularly refreshed may also have gone some way towards preventing the behaviour from occurring as well as giving the employer clearer evidence to show the preventative steps it had taken.
- Thirdly, investigations into misconduct or poor behaviour must always be carried out in a manner which is fair and thorough, and must take all relevant matters into account. As Deputy President Asbury noted; “A view was formed that Mr Anderson had been warned about such conduct in the past, in circumstances where a proper investigation would have revealed that this conclusion was questionable.”
- Finally, the contents of policies on behaviour must be clearly expressed to all workers. The fact that the employee chose to argue the redundant point that his email was regarding religion and not race, plus his lack of understanding that non-Muslim workers may have found the views expressed in the email offensive and would have a right to complain about this, shows a profound misconception of what is appropriate workplace behaviour – as defined by relevant legislation and no doubt company policy.
Employers must be scrupulous in all actions taken to prevent and address inappropriate behaviour in order to be beyond reproach should they find themselves under the scrutiny of the FWC.
Read Stephen Bell’s related blog post Challenging Times for Islamic and Political Leaders
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