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Racist joke

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mark russ View Drop Down
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  Quote mark russ Quote  Post ReplyReply Direct Link To This Post Topic: Racist joke
    Posted: 02/January/2019 at 23:01
Good afternoon all,

I'm in a position to liaise with HR on a recent workplace complaint. One of my direct reports (who is a supervisor) made an inappropriate joke about another person (team leader). This occurs on a mine site and swearing is far from uncommon.

There were four individuals involved in the conversation when the supervisor called the team leader "black c...". The team leader is indigenous. The supervisor apologized shortly after that saying that it was a big mistake and that it was a joke.

I would like to know whether this type of racial comment warrants a dismissal? The alleviating circumstances are that the supervisor has unblemished work history and hasn't been reprimanded for similar issues in the past. The comment was not intended to offend the individual and wasn't threate

Your thoughts would be much appreciated.

citizen-joe View Drop Down
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  Quote citizen-joe Quote  Post ReplyReply Direct Link To This Post Posted: 03/January/2019 at 01:56
I do not believe that it warrants a dismissal, the appropriate way to deal with this is a formal warning that could include the advice that any further instances of such a racist remark will result in dismissal.

However if such a warning is given the company needs to be assured that they have the legal teeth to carry out such an action should the supervisor so offend again.

Advice from the company lawyers should be obtained before making such a warning.

mark russ View Drop Down
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  Quote mark russ Quote  Post ReplyReply Direct Link To This Post Posted: 03/January/2019 at 14:17
Originally posted by citizen-joe

I do not believe that it warrants a dismissal, the appropriate way to deal with this is a formal warning that could include the advice that any further instances of such a racist remark will result in dismissal.

However if such a warning is given the company needs to be assured that they have the legal teeth to carry out such an action should the supervisor so offend again.

Advice from the company lawyers should be obtained before making such a warning.

Thanks kindly for your answer.

How would you personally grade this misconduct - minor, serious, gross?

Sounds like you believe the first and final written warning is most appropriate?

citizen-joe View Drop Down
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  Quote citizen-joe Quote  Post ReplyReply Direct Link To This Post Posted: 03/January/2019 at 17:48
I think it's serious, and yes a warning is appropriate, but no more chances. However check with your legal people, the last thing you want is an unfair dismissal case.

mark russ View Drop Down
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  Quote mark russ Quote  Post ReplyReply Direct Link To This Post Posted: 03/January/2019 at 20:47
Originally posted by citizen-joe

I think it's serious, and yes a warning is appropriate, but no more chances. However check with your legal people, the last thing you want is an unfair dismissal case.

Many thanks.

Does the fact that the offender is a supervisor make the offence more serious? Being a supervisor he is supposed to set the example for other employees.


citizen-joe View Drop Down
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  Quote citizen-joe Quote  Post ReplyReply Direct Link To This Post Posted: 03/January/2019 at 21:39
You are right, this is why I regarded this as a serious matter.

mark russ View Drop Down
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  Quote mark russ Quote  Post ReplyReply Direct Link To This Post Posted: 03/January/2019 at 23:29
Originally posted by citizen-joe

You are right, this is why I regarded this as a serious matter.

Many thanks for ⁣your reply.

And just one last question if you wouldn't mind. If the staff handbook clearly states racial discrimination is unacceptable and is grounds for gross misconduct, does that impact the decision? In other words, can the company impose more strict rules than what the employment law is?

jaazzz View Drop Down
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  Quote jaazzz Quote  Post ReplyReply Direct Link To This Post Posted: 03/January/2019 at 23:40

Mark...

You say that this racist remark formed part of a 'joke' & it seems from your words that there were 4 individuals involved..

You go on to say that the chap who made the comment in question has an unblemished work history, has no prior incidents, it wasn't meant to offend, was not threatening & he apologised to the other party soon afterwards, presumably without prompting...

Context is important...Assuming no history of racial targeting given no prior incidents, who reported it to HR.... Was it the target of the comment who was dissatisfied with the apology or did someone else decide to be offended on his behalf & report it.... Perhaps it was reported by someone who has a dislike for the supervisor & saw an opportunity to cause him some grief, which may well make it malicious?

IMO, given the circumstances, if it was reported by the target of the comment it wouldn't warrant anymore than a warning & some education on what is & is not appropriate in a workplace... If the target was happy with the apology given & it was reported by someone else, then a simple warning would suffice,



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mark russ View Drop Down
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  Quote mark russ Quote  Post ReplyReply Direct Link To This Post Posted: 04/January/2019 at 00:31
Originally posted by jaazzz


Mark...

You say that this racist remark formed part of a 'joke' & it seems from your words that there were 4 individuals involved..

You go on to say that the chap who made the comment in question has an unblemished work history, has no prior incidents, it wasn't meant to offend, was not threatening & he apologised to the other party soon afterwards, presumably without prompting...

Context is important...Assuming no history of racial targeting given no prior incidents, who reported it to HR.... Was it the target of the comment who was dissatisfied with the apology or did someone else decide to be offended on his behalf & report it.... Perhaps it was reported by someone who has a dislike for the supervisor & saw an opportunity to cause him some grief, which may well make it malicious?

IMO, given the circumstances, if it was reported by the target of the comment it wouldn't warrant anymore than a warning & some education on what is & is not appropriate in a workplace... If the target was happy with the apology given & it was reported by someone else, then a simple warning would suffice,




Thanks Jazzz.

These are the circumstances.

Person A says to person B: you can't participate in the indigenous development program because you're not indigenous. Person A wasn't aware that B is indigenous.

Person C joins the conversation addressing person B: So you're just a black c..t. (B has dark tan).

Person C apologizes to B soon after that. Person B accepted the apology however lodged a complaint a few days later.


The company has very clear policies on antidiscrimination, bullying and harassmen.

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  Quote jaazzz Quote  Post ReplyReply Direct Link To This Post Posted: 04/January/2019 at 08:12

Thanks Mark...

I stand by my original opinion that this incident warrants only a warning..

It also think it a little odd that an apology was accepted at the time but a complaint lodged several days later... Why the delay? Perhaps at the urging of others?

Nevertheless, given all the circumstances this would NOT fall into the category of anti-discrimination, bullying or harassment

These laws exist for good reason, but complaints must always be examined in the full context, & shouldn't be used to bring undue grief to someone who has once made a stupid off the cuff comment, especially as an unprompted apology was given at the time...

They, like all laws that seek to protect individuals from others are also open to abuse, & unfortunately can & do get used as an instrument to bring undue grief...



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Please post your legal questions in a forum rather than sending a PM. Thanks

mark russ View Drop Down
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  Quote mark russ Quote  Post ReplyReply Direct Link To This Post Posted: 04/January/2019 at 14:07
Originally posted by jaazzz


Thanks Mark...

I stand by my original opinion that this incident warrants only a warning..

It also think it a little odd that an apology was accepted at the time but a complaint lodged several days later... Why the delay? Perhaps at the urging of others?

Nevertheless, given all the circumstances this would NOT fall into the category of anti-discrimination, bullying or harassment

These laws exist for good reason, but complaints must always be examined in the full context, & shouldn't be used to bring undue grief to someone who has once made a stupid off the cuff comment, especially as an unprompted apology was given at the time...

They, like all laws that seek to protect individuals from others are also open to abuse, & unfortunately can & do get used as an instrument to bring undue grief...




Many thanks Jaazzz, appreciate it.

I remember a few cases where supervisors and line leaders have been demoted after disciplinary hearings. In what circumstances does this normally happen? Does Australian employment law address this?

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  Quote jaazzz Quote  Post ReplyReply Direct Link To This Post Posted: 04/January/2019 at 20:08
Originally posted by mark russ

I remember a few cases where supervisors and line leaders have been demoted after disciplinary hearings. In what circumstances does this normally happen?

Actual disciplinary action in the form you describe may be warranted in cases of either repeated abuse of discrimination, bullying or harassment guidelines, or in a case where the target has been seriously disadvantaged by an act.... Certainly not the kind of a one off stupid comment from a worker with an otherwise unblemished record..
Originally posted by mark russ

Does Australian employment law address this?

There are various Govt depts set up to hear & handle these type of complaints if no satisfactory action or resolution can be found within the companies own platform...

This type of one off complaint I doubt would be given any oxygen apart from a warning... Being relatively minor, I believe the expectation would be that the company should handle it with tact & balance



Any opinion given should not be accepted as legal advice.

Please post your legal questions in a forum rather than sending a PM. Thanks

mark russ View Drop Down
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  Quote mark russ Quote  Post ReplyReply Direct Link To This Post Posted: 04/January/2019 at 20:27
Originally posted by jaazzz

Originally posted by mark russ

I remember a few cases where supervisors and line leaders have been demoted after disciplinary hearings. In what circumstances does this normally happen?

Actual disciplinary action in the form you describe may be warranted in cases of either repeated abuse of discrimination, bullying or harassment guidelines, or in a case where the target has been seriously disadvantaged by an act.... Certainly not the kind of a one off stupid comment from a worker with an otherwise unblemished record..
Originally posted by mark russ

Does Australian employment law address this?

There are various Govt depts set up to hear & handle these type of complaints if no satisfactory action or resolution can be found within the companies own platform...

This type of one off complaint I doubt would be given any oxygen apart from a warning... Being relatively minor, I believe the expectation would be that the company should handle it with tact & balance




You sound very knowledgeable, thanks for your comments.

I have asked in another thread, but I might ask here if not a problem. I've been thinking myself of joining a workers' union but I don't see the point. I'm in a managerial role with 150k+ salary. It seems that under those circumstances individuals are not entitled to take their cases to FWA and hence no point of being a union member.

Would you please be able to clarify this?

citizen-joe View Drop Down
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  Quote citizen-joe Quote  Post ReplyReply Direct Link To This Post Posted: 04/January/2019 at 21:02
I believe that a worker is always disadvantaged in any bargaining or discussion with an employer. Membership of a union helps level the workers position.

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  Quote jaazzz Quote  Post ReplyReply Direct Link To This Post Posted: 04/January/2019 at 21:11

Thanks... Not sure I'm very knowledgeable but with regards to this subject I guess I take what some may see as an outdated point of view... I grew up in a time where if people called me names at school, my parents said to remember that " sticks & stones may break my bones but names will never hurt me"... Did the trick in my generation...

That said, there are certainly better ways to address abuse on all levels, & we should continue to work towards improvement, however as is quite often the case the pendulum swings a little too far in the opposing direction before finding proper balance..

So while some may see my views as a tad 'old school' I find the 'new school' are often very good at tying themselves up in knots over words & issues of the moment, but quite poor at finding ways to untangle those knots... Anyway, that's my rant Haha...

As for clarification on your last question, I'm not familiar with FWA policy on what you have raised..

Hopefully others will comment, so check back occasionally, but with regards to personal benefit of becoming a union member, I refer you to my response in your other post

Cheers



Any opinion given should not be accepted as legal advice.

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mark russ View Drop Down
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  Quote mark russ Quote  Post ReplyReply Direct Link To This Post Posted: 04/January/2019 at 22:15
Originally posted by citizen-joe

I do not believe that it warrants a dismissal, the appropriate way to deal with this is a formal warning that could include the advice that any further instances of such a racist remark will result in dismissal.

However if such a warning is given the company needs to be assured that they have the legal teeth to carry out such an action should the supervisor so offend again.

Advice from the company lawyers should be obtained before making such a warning.

Is there an employment law that would support the view that this behaviour doesn't warrant dismissal?

I would love to hear from you or others on this forum that are familiar with the employment law.

Edited by mark russ - 04/January/2019 at 22:20

citizen-joe View Drop Down
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  Quote citizen-joe Quote  Post ReplyReply Direct Link To This Post Posted: 04/January/2019 at 23:51
Originally posted by mark russ

Is there an employment law that would support the view that this behaviour doesn't warrant dismissal?


Not so much employment law, more a matter of case law, sometimes a case about unfair dismissal is upheld, sometimes it is dismissed. The circumstances and the evidence together with the method of presentation are all important.

mark russ View Drop Down
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  Quote mark russ Quote  Post ReplyReply Direct Link To This Post Posted: 01/February/2019 at 21:14
Just wanted to say thank you to Citizen Joe and Jaazz. You have provided me with excellent advice and I am very thankful that I have come across this forum.

I would also like to provide an update with regards to the case from my original post. The case has been closed and the supervisor has been issued with the first and final written warning.

Considering that this is very much in line with your previous comments, and the fact that I'll be visiting this forum more often in future, I'm wondering whether you guys are lawyers? Regardless, your advice has been correct and I'll be a very happy user of this forum and your advice.

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  Quote citizen-joe Quote  Post ReplyReply Direct Link To This Post Posted: 01/February/2019 at 22:55
Thanks Mark, no I'm not a lawyer, just educated at the university of hard knocks, backed up with a few law subjects in courses I've undertaken.





Edited by citizen-joe - 02/February/2019 at 05:08

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  Quote jaazzz Quote  Post ReplyReply Direct Link To This Post Posted: 01/February/2019 at 23:18

Yes thanks Mark.. Happy to help..

We do have members of the forum who are lawyers & that pop in on occasion. I am not one.

Cheers
Any opinion given should not be accepted as legal advice.

Please post your legal questions in a forum rather than sending a PM. Thanks

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