Drawing swastika was not racial vilification: FWA

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Drawing swastika was not racial vilification: FWA

Etching a swastika into a work, freezer-room wall was ‘stupid’ but did not constitute racial vilification, FWA has ruled in finding a worker was unfairly sacked for the drawing.

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Etching a swastika into a work, freezer-room wall was ‘stupid’ but did not constitute racial vilification, FWA has ruled in finding a worker was unfairly sacked for the drawing.
 
In February, a labour-hire employee working at VersaCold Logistics Company’s premises in Sydney etched the words ‘Welcome to Hell’ in the ice on the freezer room wall.
 
He also drew a swastika next to the words. He was seen by other workers and was also caught on CCTV.
 
The following day his employer, APS Group (Placements) Pty Ltd, cancelled his rostered shifts and began an investigation into the incident. He was subsequently sacked for defacing company property with racially vilifying material.
 
Legal obligations
 
Claiming unfair dismissal, the worker argued it was a ‘jovial display’ of criticism of the harshness of working for extended periods in the very cold conditions of the freezer room.
 
He added that he did not write the words and symbol with any intention to be racist or to hurt anyone.
 
However, the employer argued it was ‘very offended’ by, in particular, the swastika because some of the senior staff members are Jewish.
 
APS contended it had an obligation under the Federal Racial Discrimination Act 1975 and the NSW Anti-Discrimination Act 1977 to protect other employees from racial discrimination and vilification so, therefore, the misconduct of the worker ‘could not be tolerated’.
 
No intention to hurt
 
Despite finding the use of the swastika is ‘offensive and unacceptable particularly in a workplace’, Commissioner Ian Cambridge ruled the worker did not intentionally commit any discrimination or racial vilification against Jewish people or any other race.
 
‘It is important to recognise the connection between the words and the symbol. The swastika was added after the words “welcome to hell” were etched in the ice,’ Cambridge said in finding he was unfairly dismissed.
 
‘When used in this context the swastika connotes the “hell” of the words with the oppressive nature of the working conditions in the freezer room.’
 
‘The applicant (worker) did however commit an act of misconduct and either through stupidity or ignorance or both, he has failed to appreciate that the display of the swastika, no matter what the intended purpose, creates understandable offence and hurt.’
 
Denying the worker reinstatement, on the basis he had at first denied he had committed the offence and then acted ‘abrasively’ during the investigation, FWA ordered four weeks pay ($4800) in compensation.
 
 
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