FWC considers 'unsophisticated geographical intelligence' in decision
Racism and discrimination in the workplace are not tolerated in Australia.
The Australian Human Rights Commission (AHRC) takes a very strong stance against any form of discrimination in the workplace and has consistently reminded employers to ensure a safe and inclusive working environment for everyone.
In a recent case, the Fair Work Commission (FWC) dealt with the unfair dismissal claim of an employee who said her employment was terminated because she thought a co-worker of mixed heritage was “Brazilian.”
The employer quickly said that it did not tolerate racism in the workplace and dismissed her. Is there unfair dismissal?
Background of the case
The employee was a sales executive at the employer’s manufacturing company which primarily produces alcohol.
She was out of the office and called the office manager about a large order. According to the employer, it is in this phone conversation that the sales executive made comments that constituted “harassment and racial comment” regarding the heritage of another employee, the employer’s marketing manager.
The parties knew that the marketing manager “did not enjoy the process,” and so, the sales executive joked with the co-worker on the phone that the marketing manager would “kill her”, and that the latter might “swear at her in Brazilian.” The co-worker said that she was “Argentinian and Italian,” but the sales executive commented that “they are all the same.”
After the incident, the sales executive was asked to attend a meeting, where she was accused that she made “racial slurs against a colleague.”
The sales executive said that she attempted to explain her side of the story, however the employer’s personnel “refused to listen and told [her] that she had to resign, or she would be fired.”
The sales executive denied the accusation and said she had “no recollection of it and believed it to be untrue.” The employer said, “it is irrelevant,” and dismissed her.
In 2020, HRD reported on the case of a CEO who was dismissed after public footage of him arose allegedly insulting a black Uber driver.
The employer’s defence
The employer said it was “forced to act,” according to the witness statements, adding that it was a small business.
“When presented with ‘something as serious as a racist comment,’ it must act immediately,” the employer argued. It also noted the sales executive’s history and said that “she’s racist and have been racist in front of a lot of people.”
The employer also argued it made its decision based on a “duty of care to their employees to protect their safety and welfare”, describing the matter as “a serious nature” and it “understood racism to be against the law.”
Australian workplaces still confront “racism and lack of cultural diversity” as “significant issues,” according to a 2022 report from Race Discrimination Commissioner Chin Tan.
The FWC’s decision
The FWC took on the sales executive’s comment that all South Americans sound the same. It said that even though it “demonstrated an unsophisticated geographical intelligence and emotional intelligence … she could easily have been coached or educated on this issue had it been formally raised with her.”
“Once firmly informed that she is not to make the same error again, a standard would be set. Dismissing her over such a statement was an extraordinary reaction from the employer. Suggesting that she had ‘broken the law’ was a gross exaggeration,” the commission said.
The FWC further said that it does not consider her statement “to be racist,” adding that “one might easily make the same mistake with respect to attempting to distinguish a person’s accent from America or Canada.”
“It’s an error often made. Similarly, people from around the world are sometimes unable to distinguish between an Australian and New Zealand accent. If offence was taken when any of these accents cause a person to make an error, there would be a lot of people walking around offended,” the FWC said.
It said the employer had no valid reason for dismissing the sales executive and said that it should have considered another disciplinary measure or performance management processes which involved counselling and training on cultural sensitivity.
It added the company’s actions were “capricious and spiteful”.
The employee was then awarded compensation after determining that she was unfairly dismissed.
