Published 1 November 2017
In a recent case, Coffey v QBar Darwin Pty Ltd , the Fair Work Commission found that referring to a fellow employee as a “racist bitch” was not a valid reason for dismissal.
Mr Coffey, an employee of QBar, became uncomfortable with how a new manager was conversing with and rostering staff. He claimed she was employing her friends who came from the same cultural group as she did (Estonian). Mr Coffey claimed the manager spoke in Estonian to these staff members in front of customers and other staff. This made many of the staff feel excluded.
On 17 February 2017, the manager left work and said goodbye to everyone in Estonian. Mr Coffey claimed he said “seeya” but she did not reply. He then turned to a fellow co-worker and said, “she can be a racist bitch”.
QBar decided to terminate Mr Coffey’s employment by ceasing to give him shifts based on this comment and the strained work environment that resulted from his comment and failure to apologise.
Mr Coffey sought an unfair dismissal remedy in the form of compensation. He claimed that “everyone swears” in the café and the opinion was expressed to a friend. Further, while he stated he did not regret saying the comment, he recognised that he probably shouldn’t have said it.
The Commission found the comments made by Mr Coffey were not a valid reason for dismissal. While they were “at best … inappropriate and unprofessional”, they warranted a form of reprimand below dismissal.
In addition, the Commission found that Mr Coffey had been denied procedural fairness as QBar had failed to inform him of the reason for his dismissal. Mr Coffey had also not previously been issued with any warnings regarding his conduct.
Due to QBar being a small business where the relationship between Mr Coffey and the manager were strained due to the incident, the Commission determined reinstatement was not appropriate. Further submissions on appropriate compensation were to be heard at a later date.
Key issues for employers
This case highlights that misconduct by employees must be sufficiently serious to warrant summary dismissal. Misconduct that is “at best … inappropriate and unprofessional” is more appropriately dealt with by disciplinary action other than termination.
Furthermore, all employees are entitled to procedural fairness. This includes providing the employee an opportunity to respond to matters that you believe may warrant terminating their employment. Failure to provide procedural fairness can result in the Commission finding a dismissal to be unfair.