This issue has been considered recently in a series of decisions by the Fair Work Commission in the matter of Joseph Johnpulle and Toll Holdings Ltd ( FWC 1507,  FWCFB 108 and  FWC 3830).
Mr Johnpulle was dismissed by Toll after making derogatory comments in early 2015 to his colleague from Afghanistan, Mr Karzi, such as “are you from the Taliban?”, “I enjoy seeing people having their heads cut off, do you enjoy it too?” and “…I am just asking because people think everyone from Afghanistan is a Talib”.
Mr Karzi had previously complained about Mr Johnpulle making similarly offensive comments in 2014 about his religion and country of origin. At the time, these complaints were not the subject of a formal investigation or grievance process, and Mr Johnpulle did not receive a formal warning. Mr Johnpulle was simply asked by his supervisor to stop making such comments.
However, Toll raised the 2014 and 2015 incidents in Mr Johnpulle’s termination letter, to demonstrate that he had engaged in a pattern of behaviour that was unacceptable. Following his termination, Mr Johnpulle made an unfair dismissal application.
The unfair dismissal claim, and lessons for employers
The case has a long procedural history, having been appealed and remitted to a single commissioner for reconsideration.
There are two key lessons arising from the Fair Work Commission’s decisions:
- When deciding whether an employee has been unfairly dismissed, the Commission may take into account the employee’s prior conduct, even if that conduct did not lead to a formal warning or termination at the time.
- However, just because an employee has engaged in similar misconduct in the past does not mean that their dismissal is fair. It may be harsh for an employer to dismiss an employee for misconduct when they have not formally investigated or warned the employee for similar behaviour in the past.
In Mr Johnpulle’s case, the Commission found his dismissal was harsh and therefore unfair. The Commission strongly condemned Mr Johnpulle’s behaviour towards Mr Karzi, stating that it was unacceptable in a modern workplace. However, the Commission also criticised Toll for failing to take appropriate formal disciplinary action against Mr Johnpulle in the past, so that he would be fully aware that this conduct would not be tolerated.
Ultimately, the Commission found that the decision to dismiss Mr Johnpulle was harsh because of “the severity of the punishment when little [had] been done with respect to his past behaviours”.
This case serves as an important reminder to employers to ensure that misconduct by employees is dealt with thoroughly, and that appropriate disciplinary action is taken at the time. Failing to do this may make it more risky to dismiss an employee down the track.