No one wants a workplace where humour is outlawed, but employers must make sure that their employees are not exposed to language they may consider offensive or inappropriate.
What is “offensive” will usually depend upon the context in which the language is used and the sensitivity of the listener.
Often the offending employee will not realise the potential offence that could be caused by the particular words they use. Also to be considered is the industry in which the employee works, where the use of banter may be considered “normal”.
The language need not be directed to the offended employee to be considered offensive.
The Fair Work Commission upheld the dismissal of an employee in the case of Claus-Dieter Hengst v Town and Country Community Options Inc [2016] FWC 194. Mr Hengst was a Disability Support Worker and Workplace Health and Safety Advisor for a not-for-profit organisation that provides services to people with disabilities.
Mr Hengst interviewed a co-worker in relation to a work health and safety issue. On the way to work that morning the co-worker’s vehicle had collided with a kangaroo. Mr Hengst asked the co-worker whether he needed counselling as a result of the incident. The co-worker joked:
“I wasn’t overly concerned for the kangaroo. It’s not like I knew him personally”.
Mr Hengst responded:
“So you’re OK then? You’re not going to lose the plot and go home and rape your daughter or anything like that?”
What Mr Hengst said was overheard by a female co-worker who was seated close by. She was shocked by the comment. She confronted Mr Hengst who responded that “it would not happen again”, although he did not make a formal apology. The co-worker reported the incident. This was the third complaint she had made against Mr Hengst of a broadly similar nature.
Mr Hengst’s employment was terminated following a “show cause” meeting. The employer considered Mr Hengst’s comments to be “completely inappropriate” given that:
- his job included providing support to people with a disability, some of whom had been sexually abused;
- he made the comment knowing that a female co-worker was close by; and
- his comments breached a number of the employer’s policies.
Mr Hengst lodged an unfair dismissal claim with the Fair Work Commission, arguing that he “made an inadvertent slip of the tongue”, that what he said was meant to be humorous and that he did not know that the co-worker was within hearing distance.
The Fair Work Commission found that Mr Hengst knew that he would be overheard by the co-worker who had previously complained about him and that his intention was to cause her discomfort.
The Fair Work Commission formed the view that Mr Hengst wasn’t genuinely remorseful, that he had been dismissed for a “valid reason” and that the employer:
“could not confidently rely on Mr Hengst’s judgment in future circumstances in relation to the nature of his exchanges with his work colleagues or those vulnerable persons who utilise the organisation’s services, and how and in what manner and tone Mr Hengst might represent the organisation and its values publicly”.
Take outs: Employers should:
- implement appropriate policies and codes of behaviour – make it clear what is “acceptable”;
- ensure that all employees understand the policies and codes of behaviour; and
- ensure that a proper and fair investigation process is in place to deal with complaints.
