Unfair dismissal case highlights hostile work environment


Fired for offensive conduct, Toll worker wins his job back

Unfair dismissal case highlights hostile work environment
The Fair Work Commission says offensive conduct in the workplace is a sackable offence, but only if fairly investigated

 

A Toll Holdings employee has been reinstated despite Fair Work Commission (FWC) noting his behaviour in the workplace had been highly offensive.

Joseph Johnpulle was accused of making inappropriate comments regarding religion and ethnicity.  In the January 7 incident, he attributed the conduct of the Islamic State in Syria and Iraq to a colleague of Middle Eastern heritage.

The colleague, surnamed Karzi, immediately complained to a supervisor, but was able to continue working with Johnpulle for the remainder of the day and the week that followed before his termination.

The company noted three similar incidents also took place with Johnpulle during 2014, but were settled amicably.

Karzi himself had previously been disciplined for making inappropriate comments in the workplace, and was penalised three weeks of work in 2013.

FWC Commissioner Bernard Riordan says that lesser penalty should also have been open to Johnpulle. "It is not fair or consistent for Toll to ignore or claim that Karzi’s involvement in a matter in 2013 is settled and concluded, yet not provide the same courtesy to Johnpulle."

Given each of the previous matters had been settled by way of "shop floor resolutions" and not formal warnings, it would also be unfair to include them as evidence of a pattern of Johnpulle’s behaviour, Riordan says.

He says the large number of incidents stem from a workplace that appears to have yet to accept multiculturalism in its culture.

"Since the 1970s and 1980s Australian workplaces have been forced to transition from the old fashioned prejudicial Angelo-Saxon male domains," he says. "It is no longer appropriate for employees to ‘stir up’ or ‘take the Mickey’ out of their colleagues based on their sex, religion, culture or heritage in order to get a reaction.

"It appears to me that this is the type of conduct in which Johnpulle has participated. He was under the misconception that he was being funny or was looking for a reaction. In fact, he was just being stupid."

Riordan says Toll’s Erskinville depot remains a "hostile" work environment, exacerbated by what appeared to be two different and highly opposed factions among the workforce. " I am not convinced that the dismissal of Johnpulle has done anything but exacerbate that situation."

Riordan ordered that Johnpulle be reinstated and receive back-pay for the 16 weeks’ since his termination, less nine weeks’ worth of penalties relating to his misconduct.

Johnpulle will also have a first and final warning placed on his record for the next 12 months.

You can also follow our updates by joining our LinkedIn group or liking us on Facebook