WA Racist Comment at Work - Gross Misconduct Under Employment Law?

[Mate]

The simple answer is that it is not that simple. Summary termination needs to involve 'serious misconduct', but that is an imprecise term: some 'black', some 'white', and a lot of 'grey area'. Getting it wrong is a costly exercise for an employer, so they may err on the side of caution.

Then, consider the degree of seriousness. It's not just that they breach the policy - but how and to what extent. Think of it this way (using extreme cases to make the distinction clear): Let's say the policy prohibits stealing. You have one employee who pinches a couple of boxes of paperclips for the kids' art project for school. You have another employee who has been siphoning off bits of the pay run for several years into a slush fund, and is about to permanently move to Brazil next week. Both are stealing - both are breaking the policy. One may get a warning. The other will get met by the police at the airport unless she's very lucky.

Thanks very much Rob. That was a good example.

A couple of questions if you wouldn't mind:

1. From your own experience, what would be the appropriate disciplinary outcome in this particular example?
2. Hypothetically speaking, let's say the individual was terminated. The individual is on 150k+ salary and not covered by an agreement or award hence is excluded from lodging an unfair dismissal claim to FWC. Can they still take company to court for an unfair dismissal?

Many thanks.

 

[Rod]

Again not so simple. BTW I also like @Rob's analogy.

1. Would need to see the minutiae of the facts before forming an educated opinion. Could go either way. With the limited information I have, a warning doesn't seem unreasonable.

2. Yes, it may be the person is covered by a modern award or EA. But a good lawyer will consider wrongful dismissal as well which bypasses the Fair Work Act restrictions.

 

[Rob Legat - SBPL]

Rod's correct, it would depend on a consideration of all the relevant factors.

 

[Mate]

Hey guys, I have been reading lately a variety of dismissal cases, in order to get better understanding of fair and just disciplinary processes. It seems that the case law is the critical term here.

I have come across the below case from Chevron. How would you compare this case to the I have outlined?

New disciplinary options needed as Chevron unfairly sacks worker over racist slur