When banter goes bad: Judge criticises employer’s “minimalist approach” to workplace culture after harassment leads to double dismissal

Culture can dramatically vary from workplace to workplace.

It is becoming increasingly challenging for employers and employees to understand the difference between a relaxed, open and friendly workplace culture, a robust workplace culture and a workplace with a bullying or harassment issue.

In a recent decision, the Fair Work Commission (FWC) was tasked with unpacking these difficult issues.

The decision involved the unfair dismissal applications of a supervisor and a stevedore at a port in South Australia who were both dismissed following a workplace investigation into their conduct.

The investigation was triggered by an employee who claimed she resigned following a disagreement with the stevedore during which he yelled and swore at her.

As the investigation unfolded, further allegations about the conduct of the stevedore and the supervisor emerged including that they swore at employees, approved timesheets that they knew were inaccurate, favoured some employees over others and engaged in (or condoned) inappropriate conduct that targeted the employee who made the initial complaint.

In particular, it was alleged the supervisor had placed earplugs on a meeting table in front of other employees and implied they would be needed to work with the female employee because she talked a lot. It was also alleged that, in reference to the same female employee, the stevedore said “f**king women, don’t they ever shut up”. That employee was the only female employee in the workplace.

The investigation led the employer to conclude it had lost trust and confidence in the supervisor and the stevedore because they were not honest with the employer during the course of the investigation, had approved incorrect timesheets and had most likely treated the female employee in the manner she alleged, or had at least condoned such treatment of her.

On the basis of this loss of trust and confidence, the employer dismissed the supervisor and the stevedore. Both subsequently claimed to have been unfairly dismissed and their applications to the FWC were heard jointly.

Were reasons for dismissal valid?

In deciding the matter, commissioner Platt considered the evidence of numerous witnesses and the documentary evidence tendered by the parties.

The main question for determination was whether there were valid reasons for the dismissal of the supervisor and the stevedore. commissioner Platt found that there were.

In relation to the stevedore, the following were found to have constituted valid reasons for dismissal.

• The stevedore exhibited favouritism towards a particular employee that was inconsistent with his responsibilities. This resulted in the stevedore knowingly allowing that employee to be overpaid;
• The stevedore participated in conduct that belittled and embarrassed the female employee. This was a breach of the employer’s policies and was a breach of the stevedore’s employment obligations.
• The stevedore had failed in his supervisory responsibilities and was less than candid during the employer’s investigation. This amounted to a breach of the employer’s trust in him.

In relation to the supervisor, the valid reasons for his dismissal were found to be as follows.

• The supervisor was the instigator of the earplug incident that belittled and embarrassed the only female employee. This was a “substantial breach” of the employer’s policies and was a breach of the supervisor’s duties as a leader.
• The supervisor was not honest with the employer about this incident during the investigation.
• The supervisor failed to lead by example with regards to his honesty, trustworthiness and behaviour in the workplace. This “fatally wounded” the level of trust the employer had in him.

In reaching his conclusion, commissioner Platt noted the working relationships between the employees at the wharf had been impacted by private and work interactions and so some got along well while others did not. Commissioner Platt also noted swearing was commonplace at the wharf and while it should not be condoned, it is a relevant workplace culture consideration when evaluating whether allegations of inappropriate conduct that involve swearing was in fact, inappropriate.

On the distinction between banter and bullying and harassment, commissioner Platt determined (and most of the witnesses agreed) the line should be drawn where the swearing or derogatory or inappropriate comments are directed towards someone on a personal level or are made at their expense.

In the case of the only female employee at the wharf, the comments and conduct exhibited by the supervisor and stevedore crossed that line and were therefore unacceptable.

In relation to the workplace culture at the wharf, commissioner Platt commented the employer had taken a “very minimalist approach to workplace culture with no positive action other than rolling out the Policy” and must accept some responsibility for the culture at the workplace.  

Commissioner Platt also stated: “It is clear that the workplace culture at [the wharf] was suboptimal. [The supervisor] does not appear to have recognised this at the time. Had the issues concerning team dynamic and the conduct of [the supervisor] been raised in a timely manner, intervention by [the employer] may have been able to reset the culture and the supervisory processes.”

Commissioner Platt concluded that neither of the dismissals were unfair and he dismissed the applications of the stevedore and the supervisor.

Lessons for employers

When it comes to workplace culture, early intervention is best. As noted by commissioner Platt, had the issues with the workplace culture at the wharf been brought to the employer’s attention earlier, much of the dysfunction at the wharf might have been resolved in an amicable manner, resulting in everyone keeping their jobs.

This case also highlights the complexities that can evolve in the relationships between co-workers and the impact that can have on workplace culture. Co-workers spend a lot of time together and so it is natural that friendships of varying degrees will develop. The way that friends speak to each other is often very different from the way that co-workers speak to each other — friends banter, may swear, use shorthand, make jokes.

But at the end of the day, none of that banter or those jokes should amount to personal attacks or be made at the expense of another in the workplace. Where banter or jokes start to approach that line, it is time for the employer to intervene.

Information provided in this post 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 article, or from links on this article to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

This post first appeared on Workplace Law and was republished with permission.

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