The Fair Work Commission has ruled that one miner’s dismissal for offensive comments is overly harsh
BHP Billiton must reinstate a truck driver sacked for making anti-Muslim comments, after a Fair Work Commission full bench majority said the dismissal was too harsh.
The decision was based on an extensive investigation by a BHP Billiton subsidiary into a conversation three employees had that was overheard by 100 shift workers at a Hunter Valley site. The conversation included anti-muslim and homophobic comments.
It involved one of the men saying Muslims have "had 1400 years of bloody inbreeding so they gotta be f--ed up".
He also agreed with one of his colleagues that "professional hitmen" should "just cull dirt bag Australians" and "people that don’t deserve to be in this country".
The employee labelled his actions "banter" in reaction to fatigue during a long 12-hour shift. He also claimed he was not aware of any Muslims employed at the mine.
Moreover, he said if a Muslim had been working on his crew, he would not have discussed his views on the open radio channel.
The employee was then sacked for inappropriate behaviour and violating company policy.
The BHP truckie was unemployed for a number of months, before an appeals process began at the Fair Work Commission.
It was then ruled that the truck driver's comments about Muslims had not been personally directed at anyone in particular, and were consequently "mid-range" in severity.
Two Fair Work commissioners ruled in their report that “it is reasonable to conclude, for example, that for an employee to personally direct anti-Muslim comments at a fellow employee who is known to be of the Islamic faith is objectively more serious than the expression of anti-Muslim opinions to fellow employees who are known to hold similar views".
However, one Fair Work commissioner said it "beggars belief" that inciting derogatory views about a race or religion could be in the "mid-range ".
"Making jokes or comments that are inherently Islamophobic and homophobic is likely to negatively affect the mental health of people in the workplace ranging from anxiety to depression," Commissioner Leigh Johns was quoted as saying by Fairfax Media.
