An employee defended his derogatory remarks by saying he was told to “vent upwards”, but the NSW Industrial Relations Commission said this was no excuse for his misconduct.

In August last year, an employee who engaged in numerous instances of misconduct over a five year period was dismissed by his employer, a NSW government agency.

Between January 2015 and February 2020, the employee sent numerous emails and text messages to his manager in which he described other employees using phrases such as “that bunch of spastics”, “she’s an idiot”, “going to throat punch him” and “retard crew”.

In May 2020, he made derogatory remarks about staff members including referring to one employee as a “shirt lifter” (a derogatory term to describe a person who identifies as homosexual).

Separate to the derogatory remarks, the employer also said the employee inappropriately asked for responses to job application questions when he applied for an internal position. He also used his position as a service provider at a large-scale event to help his manager gain free entry.

The employee was dismissed after an investigation found he had engaged in misconduct and breached the employer’s code of conduct, which states that ‘staff must treat all members of staff… in a way that promotes harmonious and productive working relationships’. He then took the matter to the NSW Industrial Relations Commission (IRC), claiming the dismissal was not warranted.

While Commissioner Janine Webster recognised that some of the instances of misconduct should have been addressed formally at an earlier point in time, she ultimately found the government body was justified in dismissing the employee.

“The [employee’s] transgressions were extensive, and the derogatory language used to describe his homosexual colleagues particularly offensive. It is appropriate that [the employer] is firm in condemning such conduct,” said Webster.

Claire Brown, Principal Solicitor at KHQ Lawyers, takes HRM through some of the main issues that came to light in the case.

“Although the employee had a strong track record of good performance, and was a long-serving member of the organisation, the culmination of poor behaviour is indicative of somebody who is not acting in a way that’s consistent with the expectations of the organisation, which weren’t unreasonable expectations by any stretch of the imagination,” she says.

HRM reached out to the employer in question. It noted that the case is being appealed and it could therefore not provide a comment.

“Vent upwards”

When the employee reflected on sending the series of text messages and emails to his manager, which he admitted were “inappropriate” and even “disgusting”, he told the IRC:

“These messages were nothing more than two managers venting their frustrations in what was an extremely stressful job, working in a toxic environment. In 2010, when I had completed my [qualification], I remembered being taught to ‘vent upwards’ when we felt frustrated in the job, and it was part of our manager’s role to listen to these frustrations.”

While there’s a time and place to air workplace grievances to a manager – especially in a high-stress environment – there’s a point at which this crosses into unacceptable territory.

“If [the employee] had said to his manager, ‘I’m really stressed by work’, ‘I’m finding it hard to manage this person,’ or ‘I’m having difficulties because this person isn’t following my instructions. Can you help me?’, that would’ve been perfectly appropriate,” says Brown. “But that’s not what he communicated to his manager.”

The employee also said he never took his frustrations with the job out on his staff or other managers, and that he therefore behaved in line with the employer’s code of conduct. He emphasised that the messages were not intended to be shared with anyone besides his manager.

However, misconduct isn’t just about how an employee behaves directly towards other staff members.

“Sending those kinds of messages to a manager is still showing an all-pervasive attitude towards others which is inconsistent with the code of conduct,” says Brown.

Leader’s responsibility to rein in misconduct

You might be reading this article and be wondering about the manager’s role in all of this. If the employee’s superior was receiving such discriminatory and inappropriate messages, shouldn’t they have stepped in and brought the employee in line?

The Commissioner found that there was “no evidence of the [employee] being told to cease making these types of comments prior to his termination”, and said the lack of intervention “gave some credibility to the [employee’s] complaint that his work environment was ‘toxic’.

Brown says the absence of response means there might have been “some tacit endorsement” of the employee’s comments, but that this is “no excuse for bad behaviour”.

She says managers generally have two primary responsibilities to uphold a code of conduct.

“One is to model appropriate behaviour, and the other is to create a culture among the team that makes clear to them what appropriate behaviour is.

“When the first text message was received, the manager should have spoken to the employee and said, ‘We don’t talk about people like that around here. It’s not appropriate,’ and reminded them of the code of conduct.”

“Sending those kinds of messages to a manager is still showing an all-pervasive attitude towards others which is inconsistent with the code of conduct.” – Claire Brown

A good manager should also try and understand whether these comments are being said in part because the employee is under a high degree of stress, says Brown.

“She could’ve said, ‘If you want to talk about concerns that you have in managing your team’ or ‘If you need my help to manage your team more effectively, that’s what I’m here for and I’m happy to have those conversations.’”

It should, however, be noted that a manager who heard the employee describe another staff member as a “shirt lifter” reported the derogatory language to another manager.

“That’s what you want to happen,” says Brown. “You want someone to know there is someone they can raise these issues with and they know if they do raise those concerns, they will be taken seriously and action will be taken.”

Integrity in question 

Separate from the derogatory remarks, the employee was found to have engaged in misconduct when he was preparing to apply for another internal position.

The Commissioner said the evidence suggested “the employee was asking [the manager] for content from other recent job applicants… The [employee’s] question clearly expresses an intent to duplicate or copy the answers to questions in the context of participating in an interview process. The request for this information demonstrates a lack of integrity on the part of the [employee].”

However, the Commissioner found that “there was nothing inappropriate” about the employee’s request to see a copy of his manager’s CV, nor did the employee act “dishonestly or without integrity” when he asked his manager to review his job application.

In fact, Brown says it can often be HR or a manager’s role to provide general guidance when someone is applying for an internal promotion.

“It wouldn’t be inappropriate for a manager to say to an employee, ‘You did a great job on this project, so when you are going for a promotion, that would be a good example to talk about.’” 

The problem in this particular case is that the employee didn’t appear to act in an honest or ethical way – and the concern is heightened by the fact that he held a leadership position, says Brown.

“This is particularly important for a manager. As an organisation, you need to be able to trust that your managers are going to act consistently and model appropriate behaviour.”

If you suspect an employee has engaged in misconduct, what should you do next? AHRI’s short course, Investigating Workplace Misconduct, can provide some answers. Book in for the next course on 21 July.