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Just a bit of banter? When employee comments warrant a warning

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This article was written by Jedda Bamford.

As a general rule, the Fair Work Commission will not interfere with an employer's right to manage its own business, including a warning issued to an employee for misconduct, unless the employer's actions were unjust or unreasonable.[1]

Key takeaways

When investigating allegations against employees, employers should:

  • refrain from issuing warnings for conduct that cannot be established as having occurred;
  • consider whether the proposed response is a sound, defensible or well-founded one, and whether the action is proportional to the impugned conduct;
  • ensure any disciplinary action taken is consistent with company policies and previous responses to similar employee misconduct; and
  • treat comments which might otherwise be described as "idle banter" seriously where a complaint is made, or where such comments have malicious connotations.

Facts

The employer, TNT, investigated a complaint made against an employee who was also a Transport Workers' Union (TWU) delegate (Employee). The complainant employee (Complainant) had alleged that the Employee bullied and verbally abused him, by referring to a supposed "special contract" the Complainant had with TNT (mischaracterising a joke the Complainant made some days prior), and by directing various swear words at the Complainant. TNT issued the Employee with a warning in relation to the "special contract" comment, but not the swear words (which could not be substantiated). Among other things, the Employee challenged the warning's validity in the Fair Work Commission.

Outcome

Deputy President Asbury did not view the "special contract" comment as idle banter that occurs in any workplace and commented that "idle banter is not trivial where a person subjected to it is offended or upset or where it is directed to a particular person or persons so that it is likely to cause humiliation or embarrassment". The "special contract" comment, with its apparent intentions, warranted sanction by TNT. As a result, DP Asbury considered it appropriate for the employer to treat the Complainant's allegations seriously and conduct an investigation.

Further, DP Asbury considered the employer's conduct to be reasonable, as:

  • TNT conducted a thorough investigation, including showing the Employee CCTV footage and conducting interviews;
  • TNT had a sound, defensible and well-founded basis for concluding that the Employee had made the impugned comment and a valid reason to issue him with a warning; and
  • the warning was consistent with TNT's discipline policy and an appropriate, mid-range response to the Employee's conduct.

Given this, DP Asbury considered that it would not be the Commission's place to intervene, leaving the warning intact.


[1] Transport Workers' Union of Australia v TNT Australia Pty Ltd [2018] FWC 6554 (Asbury DP) at [14].



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