In the recent decision of Martin Bajelis v Reserve Bank of Australia (2020) FWC 3740, the Fair Work Commission (Commission) found the dismissal of an employee who made racist comments harsh, unjust and unreasonable and ordered reinstatement.

Facts

Mr Martin Bajelis (the employee) brought an unfair dismissal claim against his employer, the Reserve Bank of Australia (RBA), following his dismissal after inadvertently sending racist messages to a group of RBA employees.

On 6 November 2019, the employee mistakenly sent text messages to a WhatsApp group chat (Group Chat) which consisted of 23 RBA employees the employee worked closely with (the Incident). The text messages were intended to be sent to his wife.

The text messages that were sent to the Group Chat were as follows (Initial Messages):

• 8:18am: “As I was watching Henry [being the employee’s son] with his cube I realised the difference between Asians and Anglos. Asians have no interest in understanding, they are content to just learn the formulas or routines and it doesn’t matter if they understand them.”
• 8:19am: “That’s why they can’t solve problems.”

The Initial Messages were only visible for three minutes as the employee deleted them after he realised it was sent to the Group Chat by mistake. However, a number of colleagues had viewed the messages and at 8:21am a member of the Group Chat replied “I don’t feel that this is a very appropriate thing to say or very polite” to the employee. The employee immediately apologised for his mistake.

The employee later explained at an RBA disciplinary meeting that his son has been struggling academically and was constantly outperformed by his peers due to a completely different learning style which has been stressful for his wife and himself. He said the messages were intended to be a general observation to his wife regarding how his son’s learning style is different from many of his peers who happen to be of Chinese descent. In cross-examination, the employee also confirmed that he was referring to nine-year-old Asian children who were undertaking Kumon training, an intensive after-school academic coaching franchise, rather than a broader racist opinion.

The employee was terminated a month later following an internal investigation. In summary, RBA’s reasons for termination (dated 6 December 2019) were as follows:

• the employee continues to hold racist views;
• the messages had a serious impact on a number of the employee’s colleagues;
• the messages undermined his ability to have an ongoing working relationship with his colleagues;
• the employee had previous interactions with the colleagues and had been previously warned or counselled about his conduct; and
• the employee’s conduct was inconsistent with RBA’s Code of Conduct and Workplace Behaviour Policy.

The employee asserted that his dismissal was harsh in part because he had demonstrated immediate remorse and contrition upon being made aware of his mistake and that he had taken immediate action to limit any potential impact by deleting the Initial Messages and apologising.

Decision

As an initial consideration, the Commission confirmed that the Incident was work-related conduct because the messages were sent on a work-related platform. The Group Chat was a virtual workspace shared by employees and management and it did not matter that the message was sent unintentionally.

In considering the evidence of the employee and the employer witnesses, the Commission made findings that the Initial Messages were racist. Without detailed explanation, the Commission also held that the objective seriousness of the Initial Messages was in the “mid-range” on the scale of seriousness of misconduct.

The Commission, in many respects, preferred the evidence given by the employee and made the following findings:

• the views held by the employee were essentially racist. However, the Commission accepted that the statement by the employee to his wife after the Incident “Honestly. It’s mine. I’ll own it. It’s how I feel anyway” was not an adherence by the employee to his racist views, but rather a reference to the employee accepting that the Initial Messages were not polite;
• the Commission considered that the employee was not going to express the views again in the future. This view was based on the Commission’s observation that the employee had immediately apologised, deleted the Initial Messages and further apologised. As a result, the Commission concluded that even if the employee held racist views, the fact that he held that view privately was not a valid reason for dismissal, so long as he did not express those private views in the workplace;
• the RBA had not established the assertion in the termination letter that the employee had caused “actual” offence. Perhaps incongruously, the Commission found while the evidence at the time of termination established that there were two “offended” employees who had serious concerns about the employee – Mr Sukanta Biswas and Ms Elaine Cheong – the Commission was unable to find that they were “seriously impacted” for the following reasons:
• although Mr Biswas was clearly offended, the Commission determined he was not “seriously impacted” because he did not express to the employee any offence and had lunch with the employee two days after the Incident. He made no complaint for a week until prompted by another employee; and
• Ms Cheong saw the messages through a screenshot which someone else took and showed her. There was no evidence, in the opinion of the Commission, that Ms Cheong was seriously impacted;
• the Commission did not consider that the Incident precluded an ongoing work relationship, after considering the evidence. The Commission relied on evidence from Ms Cheong that she would be uncomfortable with the employee returning to work but this was for another reason, not because of the Incident;
• the RBA never had the occasion to counsel or warn the employee with respect to the previous alleged problematic conduct despite the conduct being one of the reasons for the dismissal. Further, the RBA failed to allow the employee to properly respond to the alleged prior conduct issues; and
• the Incident constituted, in the Commission’s view, a technical breach of the Code of Conduct and the Workplace Behaviour Policy of RBA. However, the Commission considered that the employee’s breach was unintentional and inadvertent which was far from wilful, clear and/or knowing. The Commission found that, while a technical breach occurred, it did not on its own, or in combination with other reasons, justify dismissal.

Overall, the Commission found that the employee was neither notified of the reasons for his termination nor given an opportunity to respond. After the first disciplinary meeting, the employee only had a proper discussion with RBA at the termination meeting, where the RBA’s Head of Employee Relations read from a prepared script before handing the employee the termination letter. The Commission held that the dismissal was procedurally unfair to a significant degree.

Although it was not a factor in the Commission’s overall consideration, the Commission also noted that given the size of the business and its team of human resources professionals, it was inexplicable why other employees in the Group Chat were not requested to provide their views on the impact of the employee’s comments.

The Commission considered the dismissal of the employee was harsh considering:

• the circumstances surrounding the Incident, including the messages’ inadvertent nature, the short period of their posting, their context and that they were only initially in the “mid-range” on the scale of seriousness;
• the employee almost immediately apologised twice; and
• the dismissal had personal economic consequences for the employee and his family.

The Commission held that the employee’s dismissal was harsh, unjust and unreasonable within the meaning of section 387 of the Fair Work Act 2009 (Cth) and that his dismissal was substantively and procedurally unfair.

Despite RBA’s strong opposition to the reinstatement, after balancing all the relevant factors, the Commission found that reinstatement of the employee was not inappropriate and ordered the employee be reinstated. The Commission rejected direct evidence from Mr Biswas that he felt that the employee had not adequately apologised or shown any concern for Mr Biswas.

Lessons for employers

The outcome, in this case, rested on the particular assessment of the evidence made by the Commission as to the impact the racist comments had on staff at RBA, as well as a view on the significance of procedural defects in the investigation and termination process. While there were procedural issues in the termination process, employers should not interpret this case as support for the requirement to maintain the employment of staff who express racist or offensive statements in the workplace.

Employers have obligations under anti-discrimination and work health & safety laws, as well as their own policies, to ensure employees are protected from harm, including from racist conduct. In order to ensure that an employee found to have breached those policies is prevented from being reinstated, employers must ensure that the evidence of those breaches are supported by clear and credible evidence and that the employee is given an opportunity to respond to the allegations.