'Comments that cause offence to other staff can be considered misconduct, and justify a warning'
The Employment Relations Authority (ERA) has sided with an employer who issued a 12-month written warning against a civil servant who went on an offensive, hour-long rant during a one-on-one meeting with a graduate. The civil servant, whose name and office were not disclosed, initially called a meeting with the graduate, who was a woman of colour, in her first civil service role, and was part of an internship programme, the ERA heard.
During the meeting, the employee commented that the graduate's last name "sounds Arabic" and asked where she was from, before pressing where her family "originally came from" after being dissatisfied with her answer.
The employee also described the "Black Lives Matter" movement as involving propaganda or "distortion of facts," before also making comments on the trans rights movement.
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The graduate was "offended" by the employee's comments, according to the ERA, and felt discomfort because she was alone with him after her working day.
The matter was raised to the graduate's manager, and the office's deputy chief executive (DCE) sent an email to the employee after deciding it was enough to warrant a disciplinary process.
"In case you are worried, I can be very clear that I am not certainly thinking of terminating your employment from this incident. However, some form of formal warning may be appropriate depending on the findings I reach at the end of this process," the DCE said in the email, as quoted by the ERA.
However, the employee said the email was "stressful and confusing." He took the matter to the ERA, arguing that the warning was "motivated by the DCE's (supposed) dislike for him." He also claimed that the incident was "not sufficiently serious to warrant a written warning" and refused to accept that the graduate was upset, implying that she concealed her emotions in a "misleading way" because she did not seem upset to him.
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ERA's decision
In its ruling, the ERA said the employer was justified in its decision to issue a written warning to the civil servant.
"These comments were not work-related. They continued for the better part of an hour. The applicant and the graduate were not friends, and there was no prior reason for him to have assumed that she would be receptive to his comments," said ERA member Claire English. "Comments that cause offence to other staff can be considered misconduct and justify a warning. The duration of the warning is relevant, and the Authority has previously found that a warning for 12 months was justified in a single case of misconduct."
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English added that she found the process followed by the employer to be "procedurally fair."
"The applicant was given multiple opportunities to engage with the respondent. He did so, on a number of separate occasions," English said. "Having engaged fairly and appropriately with the applicant over some considerable time, it was open to the respondent to issue him with a written warning."
According to the ERA, the written warning has since expired on Jan. 22, and the civil servant remains employed in the same office.
