Workplace culture can heavily influence the way co-workers interact with one another. The trouble is, when the culture is laid back, it becomes all too easy for the lines of acceptable and inappropriate conduct to become blurred. Ultimately, this can lead to a fall out between colleagues and can contribute to an undesirable (and potentially unhealthy or unsafe) working environment. In these situations, employers must uphold their obligations and take reasonable disciplinary action where necessary.

In a recent case before the FWC[1], a mineworker was dismissed for making a number of derogatory Islamophobic and sexist comments over a two way radio which were heard by over 100 employees. The employee argued that the use of the radio was an attempt to avoid fatigue and the channel he used was commonly referred to as the ‘chat channel’. He also maintained that he had not been trained in the company policies regarding unacceptable conduct, and his behavior was not inappropriate as he had heard similar comments over the radio from his co-workers and (at times) from management.

The employee was deeply apologetic for his actions, undertook not to make such comments on the radio again and gave evidence that he was an outstanding and highly respected employee.

At first instance Commissioner Saunders ordered that the employee should be reinstated on the basis that his conduct was characterised as being towards the ‘lower end of the scale’.  He also acknowledged that, whilst the employee’s behaviour was inappropriate and some form of disciplinary action was necessary, dismissal was not warranted. In forming this view, the employee’s exemplary employment record, the effects of fatigue and the financial consequences for his dismissal were considered ‘mitigating circumstances’.

On appeal, Commissioner Johns was quick to criticise the decision of Saunders and was of the view that Saunders had misused his discretion in coming to a conclusion that no “logical or rational person could reach”. Commissioner Johns applauded the company for their action and cautioned the court about the negative effects discrimination has on the workplace, including its ability to cause anxiety and depression. However Commissioner Johns was overruled by Vice President Hatcher and Deputy President Wells and, whilst Johns rose some interesting points, the Full Bench ordered that the appeal be dismissed.

This case should remind employers on the importance of developing and maintaining an acceptable workplace culture that prohibits sexist, racist or homophobic commentary. Realistically, the ability of an employer to monitor every single conversation at the workplace is slim; however it is essential that when an employee’s behaviour crosses the line, reasonable disciplinary action is taken.

Employers should watch out for:

• Angry, aggressive or violent  communication between co-workers
• Rude, malicious and derogatory comments or jokes
• Swearing or offensive language
• The spreading of rumours or gossip
• All forms of bullying, discrimination, sexual harassment or unwanted sexual advances

Lessons for Employers

• Develop and maintain a desirable workplace culture that condemns inappropriate behaviours. This should be supported though implementing policies so that employees are well informed of your expectations.
• Ensure that all disciplinary action is reasonable, fair and consistently applied. E
• Remember to afford procedural fairness when taking disciplinary action.
• Importantly, employers should remain vigilant on the interactions between co-workers

Summary:

The difference between appropriate and inappropriate workplace behaviours is often not clear cut. However, employers must be able to distinguish between the two and take reasonable action where necessary.  In these situations, the importance of ensuring a healthy workplace culture and well drafted policies cannot be understated.