'Racist bitch' remark didn't warrant dismissal

Oct 9th, 2017

Phillip Coffey worked as a casual supervisor of café staff at QBar in Darwin from October 2015 until March 2017, when he was not offered any more shifts.

QBar argued that he was a casual employee and that he wasn’t dismissed; there were just no shifts available for him. However, it said that if he was a ‘regular and systematic’ employee there were valid reasons for their decision. Mr Coffey in response applied for an unfair dismissal remedy.

Under s 382 of the Fair Work Act (‘the Act’), a person will be protected from unfair dismissal where the person has completed the minimum period of employment and where one of the three factors applied. The one relevant to this case, is that a modern award covers the person. In addition to this where an employee is casual, the employment has to be on a ‘regular and systematic basis’ and the employee had to have had a reasonable expectation that employment would continue under s 384 of the Act.

Mr Coffey submitted various rosters which showed that he was regularly and systematically employed at QBar during the week from 7am to 4pm and that this then increased to some weekends in 2016 as well.

Kristie Foreman, the owner of QBar, submitted that he only worked 28 hours per week and that this dropped to fewer than 14 hours during his last six months of employment.

The commission found that he was a regular and systematic employee as QBar failed to provide evidence that would counter Mr Coffey’s submissions. It found that he completed the minimum period of employment and was covered by an award, protecting him from unfair dismissal.

The commission had to then decide whether his dismissal was harsh, unjust or unreasonable.
'Cultural exclusion'

Mr Coffey submitted that he was dismissed on the basis of ‘cultural exclusion’ as the bar manager, Ms Stanley, favoured Estonian staff members. He agreed that calling the bar manager a ‘racist bitch’ in passing was not appropriate but submitted that he still stood by it.

He further submitted emails revealing that he had been waiting for pay slips and that other staff had also felt bullied by Ms Stanley.

Ms Foreman said that she addressed and resolved this issue of ‘cultural exclusion’ with Ms Stanley. She further submits that Ms Stanley told her about the rude comments and that Mr Coffey refused to meet with Ms Stanley to discuss the matter further. Nor was he willing to reconcile the issue with her.

Due to a reduction in work availability, and the negative environment he created, she decided to terminate his employment. Ms Foreman also reported that Mr Coffey was unreliable as he was late, or failed to turn up to shifts.

The question before the Commission was whether this was a valid reason for dismissing Mr Coffey.

Commissioner Bissett found that: "On the basis of the evidence before me it appears that Mr Coffey’s employment was terminated because he called Ms Stanley a “racist bitch”, the strained environment at work attributable to this, his refusal to attempt to come to some reconciliation about the issue with Ms Stanley as demonstrated in his email of 17 February 2017 and his statement in his email of 15 July 2017 that he had “spoken with many regular customers about this issue”.

She said Mr Coffey’s actions in talking to customers about the issue was unacceptable and his rude comments towards Ms Stanley were ‘egregious’.

However, the Commissioner ruled this warranted  a warning, not dismissal. She also found Ms Foreman did not advise Mr Coffey of the reason for his dismissal and there was no evidence to suggest he was unreliable.

"There was no valid reason for the dismissal of Mr Coffey," Commissioner Bissett said.

"It was not a sound decision but one taken perhaps out of frustration. Whilst Mr Coffey contributed to this frustration such a matter should be properly managed in the first instance before dismissal might be justified. For the reasons set out above I am satisfied that Mr Coffey’s dismissal was harsh and unjust."

Compensation to be determined.

Workplace Info Rachel O'Connor 9/10/2017

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