No excuse for 'vile' racial slur

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No excuse for 'vile' racial slur

Fair Work Australia has condemned a security industry worker’s ‘appalling’ use of a racial slur against a colleague, in ruling he was fairly dismissed.

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Fair Work Australia (FWA) has condemned a security industry worker’s ‘appalling’ use of a racial slur against a colleague, in ruling he was fairly dismissed.

[Full text of this case: Seaman v BAE Systems Australia Logistics Pty Limited [2011] FWA 7005 (4 November 2011)]

A warehouse operator working for BAE Systems Australia Logistics Pty Limited was sacked for serious misconduct in March this year.

It was alleged the worker had called another worker a ‘f*cking n*gger’ on two occasions and also physically threatened the same worker.

Despite the termination being for serious misconduct, BAE chose to pay the worker the equivalent of four weeks wages as an ex gratia termination benefit.

The other worker was placed on a written warning for his role in the altercation — he had become ‘defensive’ and ‘squared up to’ the abusive worker.

The warehouse operator claimed unfair dismissal, arguing he had admitted to and apologised for his ‘out of character’ behaviour and that given his length of service (15 years), and his essentially unblemished record the termination was harsh.

Further, the worker submitted that he had been ‘stressed’ about frequent headaches he had been experiencing and that a recent brain scan had failed to reveal the cause.

Previous counselling

BAE contended the worker’s conduct constituted racial harassment and vilification, which was not only a breach of BAE’s code of conduct and collective agreement, but was also unlawful and ‘completely unacceptable’.

The company told FWA the worker had been previously counselled regarding his interactions with other employees, and had failed to alter his conduct.

Finally, the incident was not the first between the two workers, with the racially abused worker giving evidence that he had often been spoken to ‘in a manner designed to be insulting and demeaning’.

Stress dismissed

Commissioner Michael Roberts accepted the company’s evidence that the worker had racially abused a colleague and had behaved in a physically threatening manner.

He dismissed the worker’s contention that his anxiety about his medical condition contributed to the incident.

‘... any propensity by Mr Seaman (warehouse operator) to suffering from regular headaches cannot excuse his behaviour also,’ Roberts said.

‘Certainly, Mr Seaman appears to have been an otherwise valued employee who played an important role in the warehouse and was a source of leadership and advice to other employees.’

‘However, for some reason or reasons which will probably never be fully known, Mr Seaman took an active dislike to Mr Saba (colleague) and this escalated over time and culminated in the events of 4 March 2011.’

‘Appalling’

The Commissioner also found that the words used by the worker, together with actions designed to intimidate his colleague, were ‘appalling’.

‘Mr Saba was entitled to feel insulted and degraded by Mr Seaman’s words and actions and BAE was entitled to form the view it did as to the seriousness of Mr Seaman’s behaviour,’ he said.

‘Even if the code of conduct did not exist, Mr Seaman’s behaviour would still be seriously unacceptable and amount to serious misconduct.’

‘Mr Saba moreover was entitled to perform his duties in an atmosphere which did not threaten or degrade him. The use of the racial slur “nigger” was appalling and in my view, the company’s reaction was proportionate and appropriate.’

Commissioner Roberts ruled the worker’s dismissal was not harsh, and that he must ‘accept responsibility for his actions’.

Warning should be removed

In a rare move, FWA also unofficially recommended that BAE remove any warning from Mr Saba’s personnel file.

‘It would not be proper for me to make any formal finding in this regard but I wish to note my view that I do not believe this to be a just outcome for Mr Saba,’ Roberts said.

‘He was entitled to be outraged by his treatment at Mr Seaman’s hands and to provide a vigorous response to such treatment. It appears that any response from Mr Saba was purely verbal and I believe fully understandable in the circumstances he was faced with.’

‘In the end, it was Mr Saba who was the victim of vile abuse and I see no reason for him to be punished for anything he did on that day.’

Seaman v BAE Systems Australia Logistics Pty Limited [2011] FWA 7005 (4 November 2011) 
 
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