The Case

Johnpulle v Toll Holdings (2015)

Toll terminated Mr Johnpulle’s employment after finding he had made racist comments regarding religion and ethnicity. Specifically, he had blamed Mr Karzi, an Iraqi work colleague, for the conduct of the Islamic State in Syria. Mr Karzi complained.

After Mr Johnpulle was dismissed, he brought an unfair dismissal claim requesting reinstatement.

Mr Johnpulle and Mr Karzi had previously both made inappropriate remarks. These matters had been resolved amicably and without formal warnings.

The Verdict

The Fair Work Commission (FWC) found that Toll had had a large number of these types of incidents and was a workplace that was “yet to accept multiculturalism in its culture”.

The FWC noted that, “It is no longer appropriate for employees to ‘stir up’ or ‘take the micky’ out of their colleagues based on their sex, religion, culture or heritage in order to get a reaction”.

The FWC found that, given this hostile environment and inappropriate workplace culture, Mr Johnpulle thought he was being funny or was looking for a reaction.

The FWC ordered that Mr Johnpulle:

• be reinstated;
• be back-paid for 16 weeks, less 9 weeks as a penalty for his misconduct; and
• have a first and final warning placed on his record for 12 months.

The Lesson

If you have a workplace culture that condones rather than condemns racial slurs and discrimination, it will be difficult to dismiss an employee for engaging in such conduct.

Carefully monitor your workplace to ensure that it complies with anti-discrimination laws. Failure to do so will also expose you to liability for your employees’ discriminatory conduct.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.