Company determined to rid itself of employee for offensive behaviour
Toll will return to the Fair Work Commission (FWC) this year to settle a dispute with an employee who was sacked for offensive behaviour but then reinstated to his role.
The transport and logistics operator has won its appeal to have last year’s unfair dismissal ruling in favour of Joseph Johnpulle reheard.
In that matter, FWC commissioner Bernard Riordan found Johnpulle was unfairly dismissed, despite an investigation finding him guilty of spouting inappropriate racial and ethnic comments to his colleague, Younas Karzi.
Riordan ordered Toll to reinstate him, a move Toll opposed. The full bench of the FWC this week ruled for the matter to be reheard.
It found that: Riordan did not take into account that Johnpulle’s misconduct was a pattern of unacceptable behaviour, as Toll alleged; gave no reason for his order to reinstate the employee; and exceeded his powers when ordering Toll to issue written warnings to Johnpulle and Karzi, who himself had engaged in offensive conduct.
“These errors are sufficiently significant to require the decision to be quashed,” FWC vice president Adam Hatcher says.
Toll wanted the full bench to rehear Johnpulle’s unfair dismissal claim and reject it, but the commission ruled otherwise.
“We consider that the preferable course is for a single member of this full bench to fully re-determine Mr Johnpulle’s application,” Hatcher says.
Commissioner Michelle Bissett has been appointed to re-examine Johnpulle’s case.
Johnpulle lost his job at Toll’s New South Wales depot at Erskineville in February 2015 after asking Karzi if he was a member of the Taliban and if he enjoyed seeing people executed.
Karzi complained about the comments, and Toll upheld the complaint after its investigation substantiated the claims.
In dismissing Johnpulle, Toll noted there were previous incidents between him and Karzi. Johnpulle denied the allegations.
During the 2015 unfair dismissal hearing, Riordan criticised the workplace culture at Toll’s Erskineville site, labelling it a “hostile” work environment with opposing factions.