A recent case before the Fair Work Commission[1]considered the dismissal of a casual employee who had made racist comments about his manager. The employee was a regular and systematic casual worker and as such was able to make a claim for unfair dismissal. There were two issues at play:

1. Were the comments enough to warrant dismissal?
2. Can an employer deal with disagreement between casual employees by removing one of the workers from the roster?

The employee who was ultimately dismissed had previously raised concerns that his manager had engaged in “cultural exclusion”. The manager was of Estonian background and the employee claimed that she had a habit of hiring employees from the same cultural group, and that she mainly conversed with these staff in their own language.

The incident (which lead to the dismissal) occurred when the manager left work with members of staff who were also Estonian. The manager farewelled the rest of the Estonian staff in their language but ignored the employee when he said goodbye. He reacted by turning to another employee and saying “She can be a racist bitch”. This comment happened to be overheard and subsequently reported to the café owner.

The café owner attempted to settle the issue between the employee and manager, but the employee showed no interest in reconciling. He admitted that he probably should not have made the comment, however he said that it was not made to her face and noted that “everyone in the café swears” from time- to- time. He then sent an email stating that he had contacted ex-employees who also felt bullied and discriminated against by the manger. The café owner decided to not offer the employee any more shifts given the strained relationship in the workplace.

The FWC found that the employee’s “saving grace” was that he did not make the comment in front of any customers. The Commissioner stated that the employee’s actions “can at best be described as inappropriate and unprofessional”. It was found that by not being given any more shifts, the employee was denied the opportunity to respond to the reasons for the dismissal. In light of these reasons, his dismissal was found to be harsh and unjust.

Lessons for employers 

• During the dismissal process, ensure there is a valid reason for the dismissal and procedural fairness is afforded to all employees.
• Before deciding to dismiss a casual worker, consider whether they are engaged on a regular and systematic basis. This can be determined by looking through past rosters or other work scheduling systems.
• For more serious verbal altercations between employees, consider whether the inappropriate behaviors breach relevant workplace policies.
• Develop and maintain a desirable workplace culture that operates on inclusivity and teamwork rather then exclusivity and tension.