Strong HR policies covering conduct and discrimination will go a long way to preventing offensive comments in the workplace, lawyers say.
Does your workplace have that “office funny guy” whose offensive comments seem to rub his colleagues the wrong way?
While there’s a time and place for humour, HR managers need to ensure staff are aware of appropriate behaviour policies in the workplace, or face legal risks, says Emma Thornton, a Senior Associate in Employment and Industrial law at Maurice Blackburn Lawyers.
“An employer should always make clear to employee’s their expectations about appropriate behaviour, including comments and humour,” Thornton says.
Thornton says employer expectations will differ between workplaces and what is appropriate on a building site may not be appropriate in an office setting.
“It is fundamental for any employer to ensure that employees are aware that humour of an unlawful kind – that is, for example, humour that is discriminatory and offensive because it is racist, sexist, homophobic, ageist or offensive to people with disabilities, will not be tolerated in their workplace,”
“This not only protects the employer’s legal interests, but importantly, protects other employees from being humiliated or offended at work,” Thornton says.
In the recent case of Hengst v Town and Country Community Options Inc. (2016), the Fair Work Commission upheld that a man had been fairly dismissed after a co-worker overheard an inappropriate comment he had made to a colleague.
Despite being a long-standing employee with a good performance record, and claiming that his inappropriate conduct amounted to a “slip of the tongue”, Hengst lost his case for unfair dismissal.
“This case was a finely balanced one between such an employee, facing disciplinary action for one incident and an employer who had lost confidence in the employee’s ability to act appropriately with co-workers and clients of his employer’s business,” Thornton said.
“The Deputy President deciding the case weighed up all of the considerations carefully and found in the employer’s favour.”
Whether offensive comments are grounds for instant dismissal depends on whether they are directed at a particular individual and said with malice, she says.
“However, an employer should take significant steps to educate, train and advise employees that some humour, like the comments described above that are prohibited by law are not tolerated and depending on the severity, may result in termination,”
All employers should also have in place policies or a clause in their enterprise agreement that provide for a clear disciplinary procedure that allows for transparent investigations of any complaints or instances of inappropriate behaviour, including offensive comments.
In any case of an employee making offensive comments, the employer should follow this process carefully, ensuring the employee accused is afford procedural fairness, Thornton says.
“The key aspects of procedural fairness that ought to be given to each employee is to know the details of the allegations against them, be given sufficient information and time to enable them to defend themselves and access to an unbiased decision maker,” she says.
“If an employee is found to have said offensive things then HR must undertake an exercise to weigh up all the factors leading towards and away from dismissal – for example, the nature of the comments, if they were intended to be heard by particular parties, whether they were made in public, the effect on those who heard them, the employee’s contrition, their length of service and history of behaviour issues that have been raised with them in the past.”
Thornton says the most important thing an HR person can do is ensure there are robust and appropriate policies put in place covering workplace conduct and discrimination.
“These policies should be well promoted in the company with regular refresher courses which will help prevent offensive comments being made in the first instance,” she says.
Thornton’s top tips for HR managers include: