Resources: Blog

Employee dismissed for offensive remarks in the workplace


What did you say?

It goes without saying that employees should treat each other with respect and courtesy in the workplace. In a recent decision, the FWC was tasked with considering a claim from a dismissed employee who alleged that remarks he made in the workplace were not offensive and did not justify his dismissal.

It goes without saying that employees should treat each other with respect and courtesy in the workplace.

In a recent decision, the Fair Work Commission (FWC) was tasked with considering a claim from a dismissed employee who alleged that remarks he made in the workplace were not offensive and did not justify his dismissal - Chileshe v EnergyAustralia Pty Ltd [2019] FWC 7622.

The employee in this case was a customer save consultant and had been working for his employer for about two years. In 2018, as part of his employment, the employee attended a training course with his colleagues about identifying customer concerns over telephone. The training required the attendees to diagnose a customer’s issues as though they were a doctor.

In the course of the exercise, the employee said to the trainer “Ask these guys”, meaning the three colleagues sitting next to him who he believed to be Indian. The trainer asked, “Why these guys?” and the employee responded, “They’re Indian, and all Indians are doctors.”

One of the colleagues said that they were not Indian to which the employee replied, “You can be a taxi driver then.”

After the training session, an attendee complained to the employer about the comments. An investigation was conducted and the employee was issued with a first and final warning stating that the employee’s remarks breached the employer’s code of conduct, values and diversity policy.

Then, in December 2018, the employee made an unsolicited comment to a colleague in words to the effect of, “People like you can’t get pregnant.” The comment implied that, due to the individual’s sexual orientation, she would not be able to have children. The colleague gave evidence that she was upset by the comment and felt it was dehumanising.

Finally, in March 2019, the employee attended a team huddle where colleagues were asked to share something personal about themselves. Before one of the employee’s colleagues (who was of Indian decent) could speak, the employee said, “What, don’t tell us you’re related to Deepak Chopra.” The colleague said, “That’s racist, Richard”, and the employee responded, “Oh, sorry.”

Another colleague who was present at the huddle made a complaint about the employee’s comments.

An investigation was conducted by the employer into the two incidents and the employee was invited to respond to the allegations against him. Ultimately, the investigation concluded that the employee had made the comments as alleged and they were in breach of the employer’s code of conduct and diversity policy.

The employee was invited to show cause as to why his employment should not be terminated. The employee attempted to argue that the comment about his colleague being able to get pregnant was in response to her emotional state (having recently broken up with her girlfriend) and was not in reference to her sexuality. In respect to the comment in the huddle, the employee claimed that his colleague was not offended and his comment was not offensive.

The employer ultimately decided to dismiss the employee on the basis that he had received an earlier first and final warning for the same conduct and his later comments amounted to further breaches of the code of conduct and diversity policy.

Before the FWC, the employee attempted to argue that his comments were not offensive because his colleagues did not, or should not, have taken offence. Specifically, the employee claimed that his colleague in the huddle did not take offence and he had a joking relationship with his female colleague and they could say anything to each other. The colleague gave evidence that their relationship was non-existent and his comments were about her sexuality, not about her emotional state.

The FWC considered the comments objectively, noting that the whether or not the employee’s colleagues were offended would not be determinative of whether or not his statements breached the employer’s code of conduct and diversity policy.

The FWC held that the employee’s comments were offensive and discriminatory, and involved stereotyping on the basis of race. For this reason, the FWC was satisfied that the employee breached the employer’s code of conduct and diversity policy, which amounted to a valid reason for his dismissal.

The employee’s unfair dismissal application was dismissed.

Lessons for employers

Although it may seem like something you should not have to spell out for employees, employers should always make clear to employees that they expect them to treat each other with respect and courtesy and avoid remarks that are potentially offensive or discriminatory.

One method for setting expectations is to develop a code of conduct, clearly stating the behavioural expectations on employees and the consequences for failing to meet those expectations.

When incidents of unacceptable behaviour do occur, employers should act swiftly but fairly. Allowing an unacceptable pattern of behaviour to develop and continue can have a detrimental impact on the mental health of employees and can expose an employer to a range of liabilities for failing to provide a safe workplace.


Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

Similar articles

Key Takeaways from our Webinar

Managing Workplace Behaviour: "You Get What You Tolerate"

In our August webinar, our Managing Director and Principal, Athena Koelmeyer, discussed the challenges faced by modern employers when managing workplace behaviour. In that webinar, Athena examined a number of recent unfair dismissal decisions of the Fair Work Commission which provide some good guidance for employers.


Salary reduction brought employee under high income threshold

Below not above

The COVID-19 (coronavirus) pandemic has significantly impacted the financial stability of many businesses. Employers have had to make difficult decisions and implement different measures to ensure the ongoing viability of their businesses. Some of these measures have included asking employees to agree to temporary reductions in their hours of work or to a reduction in their remuneration.


Managing employee conduct and behaviour in the workplace

Draw the line

Managing employee conduct and behaviour can be a challenge. The question of what is appropriate and what is not appropriate in the workplace will depend on a variety of factors, including the industry in which the employees work, the overall culture of the workplace and community standards at any given time.


Fair Work Commission accepts that role with additional travel time was acceptable redeployment employment

The daily commute

Employers have long known that they are obliged to try to find new employment opportunities for employees who are faced with the redundancy of their current role.


FWC upholds objection to constructive dismissal claim

Construction zone

In order to access the unfair dismissal jurisdiction, an employee must be “dismissed” from their employment by the employer. One of the instances in which an employee may be “dismissed” from their employment is if they were forced to resign because of the employer’s conduct or course of conduct.


Court penalises accountant for involvement in employer’s failure to keep employee records

Put your records on

The Fair Work Regulations 2009 (Cth) impose a number of obligations on employers with respect to the making and keeping of employee records and pay slips.


Let's talk

please contact our directors to discuss how ouR expertise can help your business.

We're here to help

Contact Us
Let Workplace Law become your partner in Workplace Relations.

Signup to receive the latest industry updates with commentary from the Workplace Law team direct to you inbox.