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Employee’s Inappropriate Language Results in Cost Award

On November 26, 2021, an interesting ruling emerged from the Fair Work Commission (FWC). An employee was ordered to bear legal costs for continuing an unfair dismissal case, despite a generous settlement offer. The case involved the employee repeatedly making offensive comments about a colleague at Link-Up (Qld) Aboriginal Corporation.

The former service delivery manager at Link-Up allegedly engaged in workplace harassment and breached the company’s code of conduct. He reportedly targeted a colleague with inappropriate remarks about her appearance and name, referring to her as “Gumby”, “Dumbo”, and “Homer”. These actions were labelled as a “connived power trip” by Commissioner Jennifer Hunt.

Link-Up had offered the manager a settlement including six weeks’ pay (on top of five weeks already paid), a statement of service, and the conversion of his dismissal to a resignation. Despite this offer, the manager chose to continue his unfair dismissal case, in an effort to clear his name. He justified his behaviour, asserting that humour, banter, and teasing were commonplace at Link-Up to cope with the sensitive and stressful nature of their work.

Despite these justifications, Commissioner Hunt ruled in favour of Link-Up’s cost application. She stated that Link-Up’s important work—reuniting Aboriginal and Torres Strait Islanders with their communities and families—had been hindered due to the diversion of funds to legal representation.

The Commissioner reasoned that the settlement offer provided the manager with an opportunity to protect his reputation and increase his chances of future employment. However, his refusal to accept the offer and his persistence with derogatory comments made his case unreasonable. The term “gumby”, for instance, was deemed as nothing more than a slur, and the manager’s argument to the contrary was found lacking.

Even though Link-Up initially sought to recoup $17,270 in legal costs, the Commissioner acknowledged the manager’s limited financial means, given he was receiving Centrelink benefits. As a result, he was ordered to pay a reduced sum of $2275, to be paid in fortnightly installments of $50. This case serves as a poignant reminder of the potential costs of inappropriate workplace behaviour and the importance of accepting fair settlement offers.

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