If you wish to keep up to date on employee relation issues, please subscribe to my free newsletter here.

Read the full decision here.

Introduction

Can’t take a joke or something more sinister? This decision relating to comments made to colleagues that were of a racially stereotyping nature and discriminatory due to a colleague’s sexual orientation were examined closely, as was “following a reasonable instruction”.

The applicant in this matter was employed as customer save consultant for almost two and a half years. The applicant’s ex-employer (respondent) terminated the applicant’s employment for comments made to colleagues that were of a racially stereotyping nature and discriminatory due to a colleague’s sexual orientation.

The respondent further alleged that applicant had failed to follow a lawful and reasonable instruction and acting in contravention of the respondent’s Code of Conduct and Diversity policy.

The comments made by the applicant, included “people like you can’t get pregnant” to a female colleague which suggested that she was unable to have children on account of her sexuality; and “what, don’t tell us you’re related to Deepak Chopra?” to a colleague on the basis of his view that the colleague is similar in appearance to Mr Chopra and a shared commonality on account of their medical background, ,with an earlier comment that “all Indians are doctors”

Contact Me for Employers Advice

The investigation

Prior to his dismissal, the applicant was absent from work for approximately seven weeks due to a combination of illness, annual leave and a workers compensation claim.

Following his return, the applicant was provided with a “formal inquiry” email, which set out the allegations against him and invited him to a meeting the following day. The email directed the applicant not to disclose any detail related to the investigation to any party that may be involved, and to treat all matters with confidence. Despite this instruction, the applicant spoke to a colleague to whom he made one of the comments to regarding the incident thus failing to follow a lawful and reasonable instruction.

The applicant found it “extremely hard to believe” that anyone had been offended by what he had said, also stating that there was a practice of offensive language being used in the workplace that the respondent had not addressed, despite the applicant making a formal complaint. Further he felt that he was being targeted by management because he had stood up against compliance fails and had queried a new sales role.

The applicant was suspended of full pay to allow a formal investigation to proceed.

Following the investigation, the applicant was sent a “show cause” letter, advising that the respondent was considering terminating his employment.

The first and final written warning

The applicant had previously received a first and final written warning following a training session that he attended with his colleagues. The applicant participated in an exercise which was designed to assist the attendees with identifying a customer’s concern by telephone. The training involved diagnosing a customer’s issue as if one was a doctor.

The applicant said that the group asked the trainer a lot of questions without diagnosing the issue. The applicant was frustrated by the exercise:

“In my frustration with the trainer I said, ‘Then ask these guys (the three Indians sitting next to me).’ The trainer then asked, ‘why these guys?’ at which I replied, “They’re Indians, and all Indians are doctors.”

When one of the three employees, to whom the applicant’s comment was directed stated that he or she was not Indian, the applicant stated words to the effect of: “You can be a taxi driver then”.

Same-sex issue

 One witness testified that:

“A few days prior to the Christmas break in December 2018, I was speaking with a colleague about a breakup I recently had with my female partner and returned to my desk. The Applicant overhead our conversation, and approached my desk and asked me words, or words to the effect of: ‘Did you break up with your boyfriend?’ I replied with words or words to the effect of: ‘No, I broke up with my girlfriend.’ The Applicant responded, ‘I didn’t know you were that way’.

“I didn’t respond to the Applicant; I felt uncomfortable and I walked away from my desk.

“Later the same afternoon, I was walking towards my desk with a colleague and we were discussing amongst ourselves how we were looking forward to one day being pregnant and having children. When I returned to my desk and sat down, the Applicant turned around from his desk and explained with words or words to the effect of: ‘When you get pregnant? You can’t get pregnant because you’re a lesbian!’ I immediately began to cry as I had never felt so dehumanised and left my desk.”

His Honour finding:

“On an objective view, I find that the statement was offensive and discriminatory. [The applicant] breached the diversity policy by failing to maintain an environment free from inappropriate behaviour and discrimination. He thereby breached the code of conduct”.

Deepak Chopra lookalike

In another incident, the applicant stated to a colleague that he looked like “Deepak Chopra, who is a world-renowned physician in alternative medicine and the colleague is studying his doctorate in medicine. It was meant to be light-hearted because they both clash in their ideals of alternate and normal medicine, or scientific medicine, and that’s when the colleague replied back, “That’s racist”, with applicant defending:

“It never occurred to me that what I was saying was offensive, so I apologised, I said, ‘Oh, I’m really sorry.’”

Notwithstanding, the respondent’s report concluded that Mr Chopra is an Indian actor, His Honour finding that the misunderstanding did not affect the integrity of the investigation. The colleague in question maintained that he did not take offence to the comments – both during the investigation and under examination at the hearing.

Despite this, His Honour concluded that:

“While [the colleague] said he did not take offence to the statement and may have been light-hearted in his response to it, this is not solely determinative of whether the statement constitutes a breach. Irrespective of his reaction to it, [the colleague] gave evidence that he understood the statement to be a stereotype. His response was such that it drew an immediate apology from [the applicant]. The diversity policy requires that employees avoid stereotyping others”.

Defining “stereotype” and “racial”

As is the bent of some FWC members, his Honour helpfully, provided definitions:

“The term ‘stereotype’ carries more than one meaning. For relevant purposes, the Macquarie Dictionary defines the term as:

(1) (noun) a set form; convention; standardised idea or concept.

(2) (verb) (stereotyped, stereotyping)

  1. to make a stereotype of.
  2. to give a fixed form to.
  3. to characterise according to a conventional idea or concept.

“The term ‘racial’ means:

(1) relating to or characteristic of race or extraction, or a race or races.

(2) relating to the relations between people of different races”.

His Honour determining that:

“The fact that [the colleague] and Mr Chopra may be similar in appearance does not, of itself, persuade me that [the applicant’s] statement was a racial stereotype. However, on the applicant’s own evidence, the statement reflected Mr Chopra’s status as a physician and [the colleagues’] doctorate in medicine. In light of this view, and against the backdrop of his earlier statement that “all Indians are doctors,” I find that the statement is a characterisation of [the colleague] according to a conventional idea or concept (that all Indians are doctors), based upon his race.

“Accordingly, I find that [the applicant] did not observe the behaviours of the diversity policy to avoid stereotyping others. His statement, in the context of his conduct history, is a further example of stereotyping on account of race. [the applicant] thereby breached the code of conduct”.

Failing to follow a lawful direction

In relation to the applicant’s failure to follow direction, His Honour found:

“An employee’s failure to follow a lawful and reasonable direction can constitute a valid reason for dismissal, citing Mr Raymond Briggs v AWH Pty Ltd [2013] FWCFB 3316:

“The determination of whether an employer’s direction was a reasonable one (there being, as earlier stated, no contest in this case that AWH’s direction was lawful) does not involve an abstract or unconfined assessment as to the justice or merit of the direction. It does not need to be demonstrated by the employer that the direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties. The proper approach to the task is that identified by Dixon J in The King v Darling Island Stevedoring and Lighterage Company Limited; Ex Parte Halliday and Sullivan 13 in the following terms:

’But what is reasonable is not to be determined, so to speak, in vacuo [Ed: in isolation]. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled.’”

“…[the respondent] sent an email to [the applicant] setting out the allegations against him and instructing him not to disclose details with any person who may be involved with the investigation. This instruction was given to preserve the integrity of the investigation and I accept that it was a lawful and reasonable direction”.

 Finding

 His Honour finding that the respondent had a valid reason for dismissing the applicant based on the statements made which breached the code of conduct and diversity policy.

“The breaches followed a first and final written warning that was issued 12 months prior for stereotyping colleagues (whom he believed to be Indian) as doctors or a taxi driver. My conclusion weighs against a finding that the dismissal was harsh, unjust or unreasonable”.

 Commentary

The company in the matter followed due process, enforcing its Code of Conduct and Diversity policy.

But there were two interesting take-aways I got from this decision:

  • The email warning not to talk to people involved in the investigation was found to be a reasonable direction; and
  • A first and final warning that was more than 12 months old was taken into account.