Julia Bastoni v ORC International Pty Ltd. (U2018/6390)  FWC 38. Clancy, DP. 4 January 2019.
Ms Bastoni (“the applicant in this matter) was a call-centre employee with eight year’s casual service. It was noted that she was a NUW union delegate. Cutting to the chase, the applicant was dismissed for inferring that her supervisor (which the DP chose to be to be identified as the “Complainant” due to the “personal and sensitive nature of the events”) did not feel the cold due to her “extra padding”. Her employer found that this amounted to bulling, in breach of its policies, and the applicant was subsequently dismissed.
Whilst not diminishing the hurt the “complainant” may have felt, should someone lose their livelihood over a one-off comment? Sensitivity training – but dismissal? Just asking…
Once upon a time on a cold Melbourne morning, a union representative on behalf of her constituents requested of the supervisor (aka “the Complainant”) that the heater be turned on. Said supervisor stated that she did not feel cold. The applicant responded that this was because the supervisor having “natural extra padding” so she did not feel the cold.
As to why she had made such comments, Ms Bastoni said:
- She was trying to make an argument to get the heater turned on;
- The Complainant had more padding than she and the others in the room at the time;
- It is a scientific fact that people with more body fat do not feel the cold as much as skinnier people and that is perhaps why the Complainant would not have felt the cold like the applicant and the other colleagues were feeling it;
- Her conception of someone having “more body fat” was that they have more body fat than is healthy;
- The comments were not personal, and she did not intend to hurt the Complainant’s feelings;
- She meant padding in terms of insulation and she did not mean to be derogatory;
- She did not think the Complainant would be so offended or take the comment so seriously given the context of their relationship; and
- She felt the Complainant would see the humour in her comments and did not intend to shame her.
On the other hand, the Supervisor stated that she was anxious, upset and humiliated by the applicant’s comments referring to her having “extra padding” and “natural extra padding” as she was concerned that other people nearby had heard the exchange.
The DP in this matter, held a contrary view deeming the employer took the appropriate action in dismissing the employee (of eight years’ service), stating:
“I regard [the applicant’s] behaviour as being completely disrespectable and unacceptable. I am satisfied her dismissal was not a disproportionate outcome in response to cruel, insulting and demeaning comments”.
Oh, in case you were wondering – the heater was turned on.
Note: As we all know by now, it is a requirement to allow a support person to attend (eg) disciplinary meetings. The Deputy President stating in this matter:
“There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” [Explanatory Memorandum, Fair Work Bill 2008].
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