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Drawing the line: when "workplace banter" is unacceptable conduct

Libby Pallot, Anthony Massaro, Ben Tallboys, Abbey Burns, Caitlin Walsh

A recent Fair Work Commission decision has likened racial slurs made by an employee to incidents of sexual harassment called out in the #MeToo movement, distinguishing between crude conduct and fundamentally unacceptable conduct.

This case highlights the need for cultural change concerning unacceptable conduct in workplaces and the vital role that employers play in educating their employees. 

Startrack Express dismissed Michael Taylor after he was found to have made foul-mouthed and racist comments to a colleague.

Ironically, Mr Taylor initiated the investigation which ultimately led to his dismissal after he was involved in a physical altercation with a colleague. Startrack Express commenced a formal investigation into the altercation, during which Mr Taylor denied making racist comments during the altercation but indicated that he had referred to co-workers“as "towel heads" or "coconuts" and he himself had been called a "white Aussie f**k.’”  He also admitted to saying “put the pallet over there you black c#*t”, “go back to where you came from you black c#*t” and “row your canoe back home you f**king black c#*t.”

Unsurprisingly, the investigation concluded that Mr Taylor had used racial slurs extensively within the workplace. After five investigation meetings Mr Taylor was dismissed for his misconduct. He made an unfair dismissal claim.

Inexcusable Conduct

In defending Mr Taylor’s position, the Transport Workers’ Union argued that Mr Taylor’s words were commonplace “workplace banter” which needed to be understood in the context of the transport industry. The union also asserted that no one had previously complained about Mr Taylor’s behaviour, which was not intended to offend. Startrack Express asserted that racist language was not commonplace and that it had provided diversity training focused on respect to its racially diverse workforce. This training included statements that racist language or jokes were completely unacceptable, and that Startrack Express adopted a zero policy for such behaviour.

Commissioner Cambridge, who heard the matter, was resolute in his condemnation of Mr Taylor’s defence. On Mr Taylor’s assertion that the “workplace banter” was well-intentioned, the Commissioner stated that this argument failed to acknowledge victims of wrongdoing do not complain because they feel powerless to prevent the conduct. In addition, the Commissioner pointed out that a line is crossed when race or ethnicity is included in any communications with co-workers.

Fair and balanced investigation process

Commissioner Cambridge praised Startrack Express’s process, in which Mr Taylor was provided a number of opportunities to respond to the allegations as well as offer his views on why his employment should not be terminated.  The Commissioner concluded that Startrack Express had conducted a fair, thorough and balanced investigation. For these reasons, the Commissioner dismissed the claim.

Lessons for employers

As the general public becomes more educated about unacceptable conduct, whether it be in relation to sexual harassment, racism or other types of discrimination, people are more likely to recognise and call out this behaviour.  This decision reinforces the fact that when such conduct is brought to an employer’s attention, the employer can act on it by following a fair process.

Employers should also bear in mind that responding appropriately to discrimination is not enough on its own. Employers are required to clearly define to their employees where the line is drawn on unacceptable behaviour and ensure that their workplace training and policies reflect this. As confirmed in the 2013 Richardson v Oracle case, an employer must take “all reasonable steps” to prevent discrimination to avoid being found vicariously liable in the event of a claim. Employers must have good policies and procedures in place, which:

  • inform employees that discrimination can be both misconduct and unlawful;
  • inform employees of the relevant anti-discrimination laws;
  • advise that both the employee and the employer may be held liable; and
  • explain the possible employment consequences of discrimination.

Please contact Russell Kennedy’s Workplace Relations, Employment and Safety Team for tailored advice relating to investigation processes and workplace policies to protect your organisation. 

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