Fair Work Commission decision on Toll Holdings worker dismissal

The Fair Work Commission has confirmed the dismissal by Toll Holdings of worker after receiving complaints from a co-worker of Afghani origin alleging he had been subjected to ongoing racial comments and cultural abuse in the workplace.

Types of alleged comments

The co-worker complained his colleague, Mr Johnpulle had made inappropriate comments to him over a period of around 15 months, including:

  • Are you from the Taliban?;
  • I enjoy seeing people having their hands cut off, do you enjoy that too?;
  • Does Islam say to kill?;
  • Discussion about 9/11 and Australian/US involvement in the Middle East.

Toll’s decision to terminate

Upon receiving the complaints from the co-worker that the comments had hurt his feelings and caused him considerable distress and offence, Toll put the allegations to Mr Johnpulle who denied all the allegations and claimed his co-worker also made racially offensive comments.

Toll terminated his services for a breach of its Code of Practice and Workplace Behaviours Policy and finding Mr Johnpulle had engaged in a pattern of unacceptable behaviour despite receiving earlier verbal warnings 15 months previously to cease his racial comments.

Commission’s decision

In reaching its decision to reinstate Mr Johnpulle, the Commission relied on the following grounds:
1. The earlier decision to provide verbal warnings for racial comments rather than more serious action indicated a culture of tolerance and failed to provide a clear message such conduct would not be tolerated in the future;
2. Having written policies on unacceptable conduct was not enough – with cultural & ethnic awareness training also needed;
3. The earlier decision to provide verbal warnings for racial comments rather than more serious action indicated a culture of tolerance and failed to provide a clear message such conduct would not be tolerated in the future.

TO AVOID SIMILAR ISSUES IN YOUR WORKPLACE

  • Ensure you have up to date policies & standards covering racist comments + abuse
  • Undertake regular refresher training in these policies – no less than every 18 months
  • Ensure your line managers treat every report of racism seriously and have it escalated to a suitably high level for remedial action.
  • If an unsatisfactory culture is present, undertake awareness sessions and training.

Toll Holdings Ltd v Johnpull [2016] FWC 1507 (11 March 2016)

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