An employee of the Reserve Bank Australia (RBA) who accidentally posted a racist message at work, has won his job back after the Fair Work Commission found that the procedural failings by the RBA made his dismissal unfair.

The employee sent a message to a work group chat, making a racist comment. Another group member replied saying the message was rude and inappropriate. The employee then deleted the original message and sent two more messages in response one swearing and another to apologise to anyone offended.

The RBA claimed the employee’s original message breached its Code of Conduct and Workplace Behaviour Policy and had a serious impact on other employees. The employee agreed that his comments were racist but stated he only intended to send the message to his wife, not co-workers. The RBA claimed the employee genuinely held racist views. The Fair Work Commission stated the comments were racist and not appropriate in at work even mistakenly. However, it accounted for the context that influenced the employee and the way he deleted them quickly and apologised showing genuine remorse. The Fair Work Commission decided a technical but unintentional breach was made, that did not on its own justify dismissal.

There was a dispute between the offence caused by the messages, however, the RBA did not provide evidence that other employees were seriously offended, so the claim was not substantiated.

The RBA did not follow a procedurally fair process in dismissing the employee. They did not notify him of the reason for doing so and did not allow him the opportunity to respond. The RBA claimed he received a previous warning for inappropriate comments however this was incorrect. The FWC described these procedural errors as “simply inexplicable”. The RBA opposed the employee’s reinstatement because his racist views were incompatible with their values.

The Fair Work Commission decided that the employee’s conduct was “mid-range”, although initially racist he immediately retracted them and his breach of the code of conduct was unintentional. The Fair Work Commission ordered the RBA reinstatement his employment because the employee did not hold racist views, apologised, and showed he was willing to maintain work relationships.

This shows how important individual context is when responding to an incident of racism. Although the employee’s actions were racist their communication to employees was accidental and he acted quickly to amend the situation. The conduct was not serious enough to justify dismissal and lack of procedural fairness by the RBA meant the Fair Work Commission ruled in the employee’s favour.

For assistance with procedural fairness or handling workplace matters contact ProcessWorx on (08) 9316 9896 or enquiries@processworx.com.au

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Written by Danielle McNamee

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