A recent Fair Work Commission (FWC) decision has considered an employer’s right to set expectations as to appropriate standards of communication in the workplace.
The case involved a disability support worker, of some 18 years standing, who in interviewing a co-worker in relation to an OHS issue stated “so you’re ok then? you’re not going to lose the plot and go home and rape your daughter or anything like that?”
While the co-worker being interviewed did not take offence, the comment was overheard by another co-worker (Complainant) who found the comment inappropriate and offensive and reported the employee.
The FWC found the employer had a valid reason to terminate the employee principally because the employee had previously been warned about co-workers’ sensitivity to his humour in the workplace and he had failed to improve. These prior warnings related to the employee wearing an apron to the Christmas party with a representation of women’s breasts on it and the creation of a “hurt feelings report” in which he mocked workers’ sensitivity about feelings in the workplace.
While the FWC acknowledged the employee had not intended to hurt, abuse or threaten anyone with his comments, and that he had acknowledged his comment was inappropriate, the FWC found the employer was justified in terminating his employment. The FWC pointed to the fact that the employee had been warned about the employer’s expectations, and was aware of the sensitivity of the Complainant, but failed to recognise his duty and obligation not to offend her. This was highlighted by the fact the employee had only apologised to the co-worker to whom the remark was made (but was not offended) but had not felt it necessary to apologise to the Complainant.
The FWC found the employer was entitled to form the view it could not confidently rely on the employee’s judgement in future circumstances in relation to his exchanges with co-workers or vulnerable persons who utilise the organisation’s services.
This case confirms employers are entitled to set expectations as to appropriate standards of communication in the workplace, and expect employees to be alert and sensitive to not only people participating directly in a conversation, but all employees in the workplace.