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Hire & Rental Australia

Worker fired over rude joke but Fair Work Commission says not a ‘fair go’

Company policies on sexual harassment hit the headlines again this week after a BHP worker was fired for telling an offensive joke on the job.

The incident took place in November 2018 when a male worker was travelling in a vehicle with three colleagues at Queensland’s Peak Downs Mine.

During the trip, one of the female workers complained of a headache, and the male replied with a comment about how he would explicitly administer Panadol to his girlfriend.

One of the women complained to management, describing the man’s words as a “totally sick” and “disgusting, rude, derogatory comment”.

BHP investigated the incident and ultimately sacked the worker, who then alleged he had been unfairly dismissed.

In an interesting twist, while Fair Work Commissioner Jennifer Hunt upheld the dismissal. She found the reasons for the sacking were not valid and the man had not been given a “a fair go all around”.

She said while the joke was “indeed crude”, “particularly vulgar and graphic” and “may easily offend others”, it would not “offend everybody”. She also said there were “many people who would find the joke amusing, even if those persons were to admit that it ‘crossed the line’ and might be considered too much for a joke within the workplace”.

What hire companies can do

Legal advisors to the HRIA and its members, MST Lawyers’ James Sanders advises rental industry employers to take steps to ensure their company policies adequately cover sexual harassment and undertake regular training to inform their employees on what is and is not acceptable behaviour in the workplace.

“Recent case trends show a reluctance by industrial courts to accept excuses for bad behaviour, often scorning assertions workers were only having a ‘joke’ or meant no offence. Excuses a person was intoxicated, suffering mental health problems or the conduct in question occurred out of work hours are becoming less and less persuasive,” James said.

HRIA members can access free HR services via the HRIA website’s HRNet portal. Visit: www.hireandrental.com.au and log in to member services.


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