Worker wins job back after being dismissed for making lewd and derogatory remarks
When faced with allegations of an employee misconduct, it is in the best interests of Australian employers to follow the principles of procedural fairness when conducting a workplace investigation.
Employers generally do not decide lightly to dismiss an employee for misconduct but there can be many adverse consequences if investigators do not conduct a fair and procedurally sound investigation.
Imagine the upheaval if the employee seeks to challenge the court’s decision and have it overturned on the basis that the investigation process was flawed. The employer will at the very least have to face the frustration of drained resources – litigation costs not to mention loss of time and productivity, negative publicity and negative employee morale.
This article takes a closer look at a recent case where a truck driver for a mining company won his job back after the Fair Work Commission ruled his dismissal was harsh. The employer had dismissed the driver in February this year for engaging in lewd and inappropriate conversations over a two-way radio during his night shift, and for using it excessively.
He allegedly made derogatory remarks about race, religion and included sexually explicit comments such as “that book on 50 ways to eat c*ck” when referring to a book his colleague was reading. Co-workers also heard the driver remark about his having a “complete gutful” of how Muslims “think they can run the whole show”.
The driver said he had used the “chat channel” to keep himself alert and awake during shift by engaging in “banter” to manage his early morning fatigue. The driver, employed at the mine for over five years, was familiar with the requirement for “positive communication” over the two-way radio; one of the “essential pillars” of the mine’s safety management system.
Commissioner Tony Saunders found the driver breached his obligations under the employer’s fatigue management policy when he failed to report his fatigue and instead dealt with it by talking on the radio; jeopardising his safety and putting his colleagues at risk by doing so. The driver’s comments also breached his employer’s code of business conduct, demonstrating a lack of respect for others, was likely to cause offence and justified his employer’s decision to dismiss him for misconduct.
However, the Commissioner noted the driver’s “exemplary employment record” and the “gravity of the misconduct” in determining whether the dismissal was fair. He conceded that while the driver did pose a risk to safety by remaining on the radio for a prolonged period, that risk was at the lower end of the scale. At the same time, the employer also conceded that profanities were commonly used in the mine and mining industry and in that context, the Commissioner said that swearing over the radio along with the driver’s “crude, lewd and sexist comments” while inappropriate, featured at the lower end of seriousness. The driver’s comments about Muslims on the radio however, were at the mid-range scale of seriousness. The commissioner also agreed that the overall conduct was inappropriate and in breach of a number of the employer’s policies and warranted some kind of disciplinary action.
“However, I would not regard such conduct on a single day at a mine site as being at the high end of the scale of serious misconduct.” says Commissioner Saunders. While the driver’s dismissal was not unreasonable, it was a harsh penalty due to mitigating factors including the effects of fatigue, genuine contrition by the driver about his misconduct and the significant financial consequences for him and his family if he lost his job.
The commissioner reinstated the driver with continuity of service to be maintained but declined to make orders to make up for the five months’ pay he lost to emphasise the inappropriateness of his conduct and that it must not be repeated.
This is a clear example of when conducting a procedurally fair workplace investigation could have helped the employer derive a fair and appropriate resolution to the employee’s misconduct; instead of an immediate dismissal which upon further investigation and consideration of all relevant factors turned out to be too harsh a penalty.
iHR Australia’s range of workplace investigation services can help to ensure that internal workplace investigations are not only sound but able to stand up to external testing. Workplace investigations conducted by iHR are fair, impartial, prompt and thorough. Our independent workplace investigators are focused and sensitive throughout the investigation process to ensure that all parties are heard and understood. We deal with informal to significant and complex investigations which can extend into operational, senior executive or board level complaints, including liaising with unions who represent parties to a complaint.
Our proven expertise ensures independence and objectivity in dealing with matters of evidence as well as insight into the source of the grievance such as lack of capability, culture, procedures and management styles.
iHR Australia also undertakes reviews of internally conducted investigations and regularly conducts both in-house and public Workplace Investigation Officer Training courses around Australia.
For assistance with conducting an independent workplace investigation or to learn more about our training courses, call 1300 884 687 or make an online enquiry.
