Stamping out discrimination in your workplace

This help sheet has been prepared by Moores, not-for-profit legal advisers.

Given the news coverage of the Islamic State of Iraq and Syria (ISIS) and public commentary on protecting the Muslim community in Australia from any backlash, the 2014 Fair Work Commission decision dealing with discrimination against Muslim people in the workplace is worth reviewing.

In the case Ronald Anderson v Thiess Pty Ltd [2014] FWC 6568, an employee was summarily dismissed after he sent an email to work colleagues vilifying Muslims. While the Fair Work Commission upheld the dismissal, the employee was awarded almost $30,000 because the summary dismissal was deemed harsh and unreasonable.

Deputy President Asbury was satisfied that there was a valid reason for the employee's dismissal, particularly on the basis that the employee's conduct was in breach of company policies and procedures, and he displayed a "complete lack of contrition" which negated his chance of reinstatement.

Despite this, it was held that the dismissal was harsh and unreasonable because the employee had only been told about appropriate use of email communication by way of an "informal discussion" with a manager, and the manner in which this important message was delivered was inadequate and "contributed significantly to Mr Anderson's failure to appreciate what was required of him".

Further, the commission was of the view that as the employer was large, with significant human resource management expertise, it should have conducted "a proper investigation" regarding the employee's conduct and taken more time to discuss the matter with him.

This case:

• demonstrates the importance of educating your employees about religious and racial vilification (e.g. providing employee training and redistributing your policies regularly);
• highlights the serious consequences of breaching policies (including termination of employment); and
• demonstrates the importance of reminding your employees that religious and racial vilification will not be tolerated in your workplace.

It is also important to remember that before a decision is made to terminate an employee's employment, a thorough investigation should be carried out to ensure procedural fairness and to minimise any legal exposure and liability.