Toll appealed the FWC’s earlier decision to reinstate the employee, who was sacked in February 2015. Commissioner Michelle Bissett said Toll had failed to take formal disciplinary action to ensure the worker was fully aware that his conduct would not be tolerated.
Although Toll’s policies made clear "what is tolerable, this is undermined if such behaviour continues to be tolerated by inaction or mild rebuke", the commissioner said the worker's behaviour should have been reported to more senior management in late 2014 before his dismissal in February last year.
The Toll employee was fired for allegedly making “racist, sectarian and inappropriate” remarks to an Afghan co-worker.
He allegedly asked his co-worker if he was from the Taliban and made offensive comments about Islamic State.
"Does Islam say to kill? ... I enjoy seeing people having their heads cut off, do you enjoy it too?" he was alleged to have asked his colleague, who is of Middle Eastern heritage.
In the initial FWC hearing, Commissioner Bernie Riordan said that while the employee’s conduct was ‘inappropriate’, Toll had failed to provide a final warning for persistent and unacceptable conduct.
Riordan also said Toll's investigation and disciplinary processes had been flawed.
Toll appealed Commissioner Riordan’s judgment, saying he had failed to take into account that the employee's misconduct was a "pattern of unacceptable behaviour".
In the second FWC hearing earlier this month, Commissioner Bissett said Toll’s decision to sack the worker was severe, because they had failed to give proper prior warnings.
Bisset said she had also considered the 58-year-old worker's service, age and the impact of his sacking and found the effect of his dismissal was severe in that he was the sole earner for his family and also the carer for an elderly father.
"In all of these circumstances and after careful consideration, I am satisfied that the decision to terminate [the worker's] employment was harsh for the personal consequences of it for him and because of the severity of the punishment when little has been done with respect to his past behaviours," the commissioner was reported saying in Fairfax Media.
"Whilst I do not say that Toll condone the behaviour of [the worker], I consider that the decision to dismiss is severe given the absence of any earlier sanctions,” she said.
"In circumstances where the personal effect of the decision to terminate employment had not been so severe, my decision may well have been different."
However, Commissioner Bissett said the worker and those who had supported him "should not feel vindicated by my decision" and racist conduct “should be called out”.
"Employees engaging in such conduct must be warned that the conduct is not acceptable and further conduct of that type may lead to dismissal," Commissioner Bissett says.
She said the hurtful comments "could not, in anyone's view, be considered a joke".
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A Toll worker who was sacked for making racist slurs against his Afghan colleague will be reinstated to his job after a second review by Fair Work Commission found that his employer didn’t follow fair process when dismissing him from his role.