FWC: 'Languages other than English should be valued in the workplace'
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application lodged by a worker against his former employer, a small automotive business. In its investigation into the facts of the case, the Commission found that the worker had complained about "hearing Chinese" in the workplace, among other issues.
It said that the worker's unfair dismissal application lacked clarity and failed to provide a coherent explanation for why he believed his dismissal was unfair.
In contrast, the employer presented a well-reasoned account of the dismissal, citing the worker's misconduct and inappropriate behaviour in the workplace.
Worker’s unclear application
The FWC said that the worker's unfair dismissal application was “unclear,” adding that he mentioned disagreements with the employer about annual leave payments and a bonus, as well as an alleged request from the employer to lie in court about a crash repair job.
According to records, the worker also said that “the worst thing about his job was that [the employer] and another worker spoke Chinese all day long.”
The FWC said that the only clear evidence provided by the worker was the termination letter from the employer, which stated the reasons for the dismissal, such as:
- “Go out often during working hours with no scheduled meeting with clients outside the company.”
- “Often attend workplace late and leave workplace earlier.”
- “Harass employer (sic)”
- “Express negative comments about the company and harm the company's reputation (sic)”
- “Smoke in the workshop and breach workplace health and safety conduct”
- “Unacceptable language in the workplace."
Despite being given multiple opportunities to provide supporting evidence and arguments, the worker failed to comply with the Commission's directions and ultimately did not attend the determinative conference.
Employer's credible evidence
The employer provided credible evidence to support the reasons for the worker's dismissal. He testified that he had personally witnessed the worker leaving the workplace without appointments, arriving late and leaving early, smoking in the workplace, and using inappropriate language.
The employer also submitted copies of abusive and threatening texts he had received from the worker. The Commission found the employer to be a credible witness and accepted his evidence about the worker's behaviour and the reasons for the dismissal.
As the employer's business had fewer than 15 employees and no associated entities, the Small Business Fair Dismissal Code applied.
Commission’s findings
The Commission concluded that the dismissal was consistent with the Small Business Fair Dismissal Code, as the employer had reasonable grounds to believe that the worker's conduct was sufficiently serious to justify immediate dismissal.
The Commission stated:
“The [employer] had reasonable grounds for believing that [the worker’s] conduct was sufficiently serious to justify immediate dismissal. The last straw for [the former] were the texts he received from [the worker], which included unacceptable language, as referred to in the termination letter."
Different languages in the workplace
The Commission also addressed the worker's complaint about his colleagues speaking Chinese in the workplace.
“[The worker] deserves a stern rebuke for his remark that the worst thing about his job was listening to the manager and the receptionist speak Chinese,” the FWC said.
“Languages other than English should be valued in the workplace. Instead of complaining about listening to Chinese, [the worker] could have tried to learn some of his employer’s language, as a way of showing respect and gratitude to [the employer], who after all was a small business owner using his initiative to provide employment and a livelihood to his workers,” the decision said.
“But instead of offering [the employer] a humble ‘xie xie’, as he ought to have done, [the worker] lodged a thoroughly unmeritorious claim and then failed to prosecute or discontinue it. This too deserves censure. [The employer] has been diverted from running his small business for no good reason,” the FWC added.
