WHS Advisor Sacked

WHS Advisor Sacked for Inappropriate Comments

The Fair Work Commission has upheld the dismissal of a WHS advisor who made a joke about rape during a safety investigation.

In Brisbane, the FWC found the Town and Country Community Options Inc worker, also a disability support worker, deliberately made the joke in front of a female co-worker who’d previously complained about his inappropriate jokes and comments, and his employer couldn’t confidently rely on his judgement in the future.

In September 2015, the worker was interviewing a male co-worker who had struck a kangaroo with his car that morning, when the co-worker said he didn’t need counselling.

The worker then said in a jocular fashion, “So you’re okay then? You’re not going to lose the plot and go home and rape your daughter or anything like that?”

The exchange was overheard by a female co-worker sitting two metres away. She confronted the worker about the comment and reported the incident to the organisation’s chief executive officer, who subsequently sacked the worker.

Before FWC Senior Deputy President Peter Richards, the worker said he was “gobsmacked” that the incident was considered serious enough to be reported to the CEO.

He said his comments were a slip of the tongue, and he felt his behaviour didn’t breach the TCCO policies outlined in his termination letter.

He also claimed that he had “deliberately sought to manufacture a humorous exchange”, which he later regretted, and he hadn’t been aware the female co-worker was within earshot.

But Senior Deputy President Richards found the worker wasn’t genuinely remorseful for his actions because his two explanations were contradictory.

“The fact [the worker] maintained both narratives illuminates the fact that [he] did not at any stage fully comprehend the gravity of the comments that he made and their effect on those around him, particularly in an environment focused on the protection of the interests of the vulnerable in the community,” he said.

He also found that it was not possible for the worker not to realise the female co-worker was within earshot of the comment, and noted the female co-worker had complained about him on three previous occasions.

These included when he wore an apron depicting a woman’s breasts to the work Christmas party, and when he passed a note around the office titled the “Hurt Feelings Report”, which lampooned office worker sensitivities.

Senior Deputy President Richards found the worker knew the female co-worker was sensitive to his actions, and deliberately made the rape joke to “cause her embarrassment and challenge her cultural sensibilities”.

He also found that at no time did he offer her an apology for offending her.

“In my view the employer could not confidently rely on [the worker’s] judgement in future circumstances in relation to the nature of his exchanges with his work colleagues or those vulnerable persons who utilise the organisation’s services, and how and in what manner and tone [the worker] might represent the organisation and its values publicly,” he said.