What he claims was just “good-hearted banter” has brought this employee’s 17-year tenure to an end with the Fair Work Commission supporting the employer’s decision for on-the-spot dismissal.

The Fair Work Commission (FWC) has upheld the summary dismissal of a StarTrack forklift driver, after 17 years’ service, for directing racial slurs at colleagues including calling a Samoan co-worker a “black c**t”, a diatribe including “go back to where you came from you black c**t”; “row your canoe back home, you f**ing black c**’,” and referring to co-workers as “towel heads”, “coconuts”, and “gooks”.

Is it still a joke if no one is laughing?

The employee, who was based in StarTrack’s Western Sydney depot in Minchinbury, was represented by the Transport Workers Union in his unfair dismissal claim and argued that:

(a)   no one had complained about the comments;

(b)   the comments were “good-hearted banter” between colleagues; and

(c)   the comments were enjoyed by others; it was just comedy; that, to a certain degree, it represented terms of endearment; and it was a strange form of humour.

In finding a valid reason for the termination, Commissioner Cambridge held that “such an attempted defence or justification of abhorrent behaviour is an approach that disregards the fundamental wrongdoing, and it fails to appreciate that the victims of the wrongdoing do not complain because they feel powerless to prevent the conduct”.

The Commissioner found that taking the approach that language was not offensive because no one had complained “has regrettable and disturbing parallels with the recent exposure of incidents of sexual harassment in the employment context, which has created what is referred to as the #MeToo movement”.

No place for this behaviour in the workplace

The Commissioner observed that the employee “seemed to be unable to appreciate that the racial components of his workplace ’banter’ and swearing was something that is separate and distinguishable from any robust language or verbal jousting that may be used as ‘part and parcel’ of a ‘knockabout’ workplace”.

“In simple terms, a line is crossed when race or ethnicity is included in any communications with co-workers, and any suggestion of being well intentioned does not provide a defence or justification for conduct that is fundamentally unacceptable,” he says.

On this basis, the FWC distinguished that “crudity can be tolerated, racism cannot”.

Commissioner Cambridge says the worker’s situation, including his long service, age and otherwise unblemished record, might have established some basis for giving him a second chance, except that he “failed to appreciate the fundamental misfeasance associated with the use of racial slurs in any context or circumstance” and showed “little or no remorse”.

In all the circumstances, and particularly given the employer’s zero tolerance policy for racism –  which included a training video entitled “Expect Respect” – in its culturally and ethnically diverse workforce, the FWC was “not prepared to disturb the balanced and properly considered determination made by the employer”.

Fay Calderone is a partner at Hall & Willcox.