Two recent decisions in the Fair Work Commission have considered the issue of when an employee can be dismissed for making a derogatory or insulting comment. As these cases highlight, the context in which a comment was said and any past acts of misconduct are relevant to whether dismissal is appropriate in the circumstances.

Reference to supervisor’s weight a valid reason for dismissal

In Julia Bastoni v ORC International Pty Ltd , Ms Bastoni applied for an unfair dismissal remedy from the Fair Work Commission (FWC) after she was dismissed from her employment for breaching ORC’s bullying and harassment policy. During a discussion about whether the heater in the office should be turned on, the complainant, who was Ms Baston’s supervisor, told Ms Bastoni that she did not feel the cold. Ms Bastoni replied by saying that this was due to the complainant possessing "extra padding" and later also referring to Ms Bastoni as having "natural extra padding". In justifying her comments, Ms Bastoni submitted that her comment was not intended to be derogatory and that "It is a scientific fact that people with more body fat do not feel the cold as much as skinnier people".

The FWC ultimately found that Ms Bastoni’s dismissal was not "harsh, unjust or unreasonable", having regard to her "cruel, insulting and demeaning comments". The FWC concluded that her derogatory statements considered by itself constituted a "valid reason for her dismissal". Significantly, the FWC considered Ms Bastoni’s statement in the context of her previous acts of misconduct. Ms Bastoni had been subject to disciplinary warnings for breaching ORC’s Mobile Phone Policy, as well as for breaching ORC’s Food and Beverage policies. The FWC found that these past acts of misconduct indicated that Ms Bastoni’s comments to the complainant were "not isolated", but were "part of a pattern of increasingly belligerent and disruptive behaviour".

Derogatory remarks about Michael Jackson’s father on-air not a valid reason for dismissal

Peter Hand v Campbelltown Radio Pty Ltd T/A C91.3FM Radio  is another recent case that has dealt with an application for unfair dismissal following a derogatory comment made by an employee. However, a different conclusion was reached by the FWC in this case which concerned an applicant who was dismissed for allegedly making a racial slur. In this case, Mr Hand described Michael Jackson’s father, Joe Jackson, as a "great big black bastard" during an on-air radio segment. The respondent subsequently dismissed Mr Hand, claiming that his on-air statement breached of the Commercial Radio Code of Practice.

In contrast to the decision reached in Julia Bastoni v ORC International Pty Ltd, the FWC in this case concluded that Mr Hand’s dismissal was "harsh because it was disproportionate to the gravity of his misconduct". The FWC therefore held that there was no valid reason for dismissal despite the fact that Mr Hand’s statement constituted misconduct. In reaching this decision, the FWC found that Mr Hand’s statement fell short of being a "racial slur" when considered in its context. Specifically, the FWC was satisfied that the audio recording made it apparent that the phrase was used with the intent of "distinguishing between two people named Joe Jackson, one of whom is white and one of whom is black". The FWC further noted that Mr Hand was not intending to attribute Joe Jackson’s alleged "reprehensible" character to his colour, and that he had immediately sought to make an on-air apology after he become aware of his "mistake". The decision resulted in Mr Hand being awarded $28,742, which represented 26 weeks’ pay which is the maximum that could be awarded to him under the unfair dismissal regime.

Take home points

These decisions make clear that derogatory or demeaning comments made by an employee can provide a valid reason for dismissal. However, the context in which the statement was made, any mitigating circumstances and the employee’s disciplinary record will be of importance in determining whether the dismissal was a proportionate response to the offending comment.

Accordingly, those in charge of investigating complaints and determining whether disciplinary action is appropriate, need to take the circumstances surrounding the comment, as well as the employee’s past conduct, into account. Regard should also be had to any policies or procedures relevant to the investigation process and the assessment of whether the conduct engaged in constituted misconduct.