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Daniel McNamara, Graduate Associate

A recent Fair Work Commission (“the Commission”) decision has cited the #MeToo movement, encouraging victims of inappropriate workplace conduct to speak out against their perpetrators, in a situation that involved accusations of racist comments.

In relation to the identified misconduct, the Commission drew an analogy to the #MeToo movement, noting that:

[t]he attempt to defend or otherwise justify the applicant’s use of racially offensive language on the basis that the applicant didn’t believe that it was harmful, and that no one had complained, is an approach that has regrettable and disturbing parallels with the recent exposure of incidents of sexual harassment in the employment context, and which has created what is referred to as the “#MeToo movement.

Factual Background

  • The Applicant, an employee of StarTrack Express (a subsidiary of Australia Post) was dismissed after making a number of derogatory and racist remarks, including phrases such as “row your canoe back home you f***ing black c**t”, towards co-workers.
  • The Applicant cited the comments as “commonplace and part of general workplace banter” and that he did not consider the remarks to be intended as offensive, but rather “to entertain”.
  • The Applicant alleged that his conduct did not amount to serious misconduct, that the decision to terminate his employment by the Respondent was excessive in light of the circumstances, and that he was not afforded procedural fairness throughout the investigation process.

The Outcome

The Commission praised the Respondent in conducting a “fair, thorough and balanced” investigation into the allegations, finding that the employer demonstrated procedural fairness at all stages of the investigation and that the Respondent had validly dismissed the Applicant.

The Commission noted that the Applicant failed to show any remorse, appearing “to be unable to appreciate that the racial components of his workplace “banter” and swearing was something that is separate and distinguishable from any robust language or verbal jousting that may be used as “part and parcel” of a “knockabout workplace”.

Key takeaways

  • The notion that derogatory and/or racist remarks are merely a form of commonplace workplace banter is clearly rejected in this decision.
  • The decision also shows that the subjective view of the perpetrator that the remarks were not harmful, that no one had complained, and were merely “to entertain” carry very little weight. This aligns with the approach adopted in relation to recent sexual harassment claims.
  • It is a reminder that any investigation into allegations of inappropriate workplace behaviour should be conducted in a manner that is “fair, thorough and balanced”.