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March 2020

Offensive comments can be a valid reason for dismissal

Offensive comments can be a valid reason for dismissal

The Case

Chileshe v EnergyAustralia Pty Ltd (2019)

Mr Chileshe worked as a consultant for EnergyAustralia Pty Ltd (EnergyAustralia). In 2018, he attended a work training course. The training required Mr Chileshe and other attendees to diagnose a customer’s issues as though they were a doctor.

During the exercise, Mr Chileshe questioned the trainer, saying, “Ask these guys?” in reference to these colleagues sitting next to him. The trainer replied, “Why these guys?” Mr Chileshe responded, “They’re Indian, and all Indians are doctors.” One of Mr Chileshe’s colleagues said that he was not Indian. Mr Chileshe replied, “You can be a taxi driver then.” After the training session, an investigation was conducted and Mr Chileshe was issued with a first and final warning.

In December 2018, Mr Chileshe said to another work colleague, “People like you can’t get pregnant.” Mr Chileshe was implying by this comment that his colleague could not get pregnant due to her sexual orientation.

In March 2019, Mr Chileshe was involved in a team meeting where each employee had to share something about themselves. Mr Chileshe said to another employee, “What, don’t tell us you’re related to Deepak Chopra.” Mr Chileshe apologised when the colleague objected to the statement.

EnergyAustralia then conducted another investigation into Mr Chileshe’s conduct. As a result of that investigation, Mr Chileshe was found to have breached EnergyAustralia’s code of conduct and diversity policy. Mr Chileshe was given an opportunity to argue why his employment should not be terminated. He argued that his comment about his colleague not being able to fall pregnant was in response to her emotional state and not her sexuality. Mr Chileshe also argued the other work colleague was not offended by the Deepak Chopra comment.

Given Mr Chileshe’s prior warning, EnergyAustralia decided to terminate his employment. Mr Chileshe made an unfair dismissal claim to the Fair Work Commission (FWC).

The Verdict

The FWC held that Mr Chileshe’s comments were discriminatory, as well as offensive. As such, it held the dismissal was for a valid reason and was not unfair, unjust or unreasonable. Mr Chileshe’s unfair dismissal application was dismissed.

The Lessons

This case demonstrates the importance of:

  • having policies that outline that discriminatory and offensive conduct is not appropriate, and will be subject to disciplinary action and possible employment termination;
  • training employees in those policies;
  • policing conduct to ensure it remains appropriate;
  • issuing warnings when the conduct is not appropriate; and
  • providing an employee with a procedurally fair process when considering employment termination.
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