Saturday, 14 September 2013

Mind your language – coping with the fallout of offensive behaviour

McQuarrie v Alcoa of Australia Limited

The first case involved a mineworker, McQuarrie, who was dismissed after making culturally insensitive remarks about the local Aboriginal community on a two-way radio frequency used by employees at the site.
During the discussion with a senior operator – which could be heard by other workers – McQuarrie had sought contact details of the local Aboriginal elder to notify him of an incident in which several Aboriginal youths had abused his mother.

McQuarrie repeated the words the youths had used in their taunts, including “f**k” and “c**t”. He also referred to an event 50 years before, when a poster containing “Shoot a C**n Day” was put up in a post office, adding that on that day you would not have seen “any of them in town”.

Alcoa later investigated the incident and, although McQuarrie said that the remarks were not intended to be malicious or cause offence, it decided to dismiss him.

The Fair Work Commision accepted that one of the purposes of the call was to locate the elder, but found that the comments were not some “mere slip of the tongue” made in a private context, but were instead “deliberate, overt and highly offensive.”

It said that the employee would have known the offence his comments could cause – a finding made easier by the efforts that the employer had gone through to implement policies and train employees in these respects.

The employer had investigated the complaint properly, and had given the employee a reasonable chance to respond to its concerns. In the circumstances, and although the employee had worked with the company for over 30 years, the dismissal was held not to be unfair.

Parker v Cetel Communications Pty Ltd

The second case concerned an employee, Parker, who failed to convince the Court that his resignation amounted to a constructive dismissal.

In the case, Parker had a heated exchange with his operations manager regarding defective equipment, which led to Parker telling his manager to “get f***ed” adding: “I’m not putting up with this crap” before then leaving the worksite.

After the Managing Director (who was also Parker’s older brother) told Parker that the manager did not think he could work with him, Parker responded in kind, and said that he would look for another job.

When Parker tried to say that he had been constructively dismissed, the Court disagreed, and found that he had resigned.

It said that cases involving constructive dismissal “generally involve circumstances where the employer’s actions bring about the termination of employment even though the final act is that of the employee resigning.” And in this case, Parker had other options than to respond as he did.

The lessons to be learned from these cases

Offensive or racist language can cause significant disruptions, but should be dealt with carefully when it occurs.

Comments should be assessed in context, and employers should always ensure that a valid reason for dismissal exists before acting. Procedural fairness should also be given to employees covered by the unfair dismissal laws.

Implementing policies regulating appropriate workplace behaviours will provide another layer of protection. Care should also be taken where employees leave in the heat of the moment or in response to conduct by others, which can in some cases amount to constructive dismissal.


This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.