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Are Cultural Norms a Defence to FWC Claims?
Recent cases before the Fair Work Commission (the “FWC”) have raised the question of whether cultural norms can justify certain workplace behaviour which may not be viewed as “appropriate” under Australian workplace laws. Below are two cases which explore how the FWC has navigated cultural differences in an employment context.
When cultural norms affect physical touching and threats
A general protections case involved a young school-leaver who commenced casual employment as a waiter at a restaurant. The owner of the restaurant was of Korean descent.
The employee alleged that several incidents at work forced him to resign from his role because the workplace was no longer safe for him. These incidents included circumstances where the owner heavily patted the employee on the back while informally counselling him of his errors at work. In one of these discussions, the owner said that he would “kill him” if the employee made his wife (who co-owned the business) stressed.
Part of the owner’s defence to the physical touching was that he was of a Korean background, where physical touching and extreme threats were commonplace as part of the workplace when counselling an employee (particularly amongst males).
Although the FWC accepted that it was likely the owner did not mean any harm to the employee, the FWC held that the employee had been forced to resign as a result of the owner’s conduct. The FWC also confirmed that the owner’s conduct had been unreasonable.
The FWC provided stern guidance that employers are expected to adapt their cultural behaviour to avoid physically or verbally intimidating others. This means that in the context of Australian workplaces, a business owner cannot reasonably expect to physically handle or touch an employee as part of normal workplace interactions, regardless of whether the actions would be culturally acceptable in a different country.
When cultural norms affect workplace communications
In another case, a 72-year-old employee filed an unfair dismissal application against his employer who was of Chinese descent. In this case, the employee was advised that he was underperforming in his role and that he could no longer be employed for the hours he was working. The employee was also asked about his future plans in relation to work and retirement.
The employee was under the impression that he had further time to consider his position and options. However, the employee was later told that he did not “need to come in anymore” via text. In response, the employee responded, “are you dismissing me?”. Eventually, the employer confirmed by text that the employee’s role was “reduced to an honorary role” and that he only needed to “meet once or twice a month”. The employer also confirmed that the employee was “welcome to come in, but not required to come” and that he would receive reduced pay.
As part of his defence, the employer submitted that respect for older persons in the Chinese culture meant that it was inappropriate for the employer (being a younger person) to use direct or formal language when discussing matters of warnings or dismissals with an older person.
The FWC confirmed that the employer had valid reasons to dismiss the employee because he was underperforming in his role. However, it was held that the employer had dismissed the employee and that the dismissal was harsh.
While it was noted that the employer should not be criticised for respecting his cultural norms, the FWC commented that under Australian law, employers are expected to communicate “important matters concerning a person’s employment directly and clearly” regardless of cultural norms and good intentions.
Cultural diversity is important, and employers need to be aware of, and appropriately manage, cultural norms in the workplace. These two cases highlight how failure to do so can result in claims being made against an organisation.
It is always essential to understand the particular characteristics at play in any workplace and there are measures employers should take to ensure they have visibility of all issues within an organisation. One method is to undertake culture audits which allow an organisation to identify a broad range of cultural and systemic issues.
It is also important to ensure that appropriate behaviour and culture training is provided to employees so that they are aware of their obligations and acceptable standards of behaviour under Australian law. This is particularly the case where employers are aware that there are cultural norms at play. The FWC has been critical of “tick and flick” training and highlighted the importance of face-to-face training which has educational rigour and allows for employee engagement.
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11 December 2017