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The Fair Work Commission has found that the dismissal of an Energy Australia employee was not unfair after it was found that the employee repeatedly breached the company’s Code of Conduct and Diversity and Inclusion Policy (Risyad Chileshe v EnergyAustralia Pty Ltd [2019] FWC 7622).

The customer loyalty consultant was issued with a first and final warning 12 months prior to the dismissal after an Energy Australia investigation found that he had breached the company’s Diversity and Inclusion Policy by making “offensive and discriminatory” comments to colleagues during a training session.

These comments included referring to three men of Indian decent as doctors. When one of the three men said that they were not in fact of Indian decent, the consultant responded, “you can be a taxi driver then”.

Subsequent to being issued with the written warning, the consultant made two more discriminatory comments to colleagues.

In March of this year, the consultant attended a ‘team huddle’ in which he told a colleague, who was of Indian decent, “don’t tell us you’re related to Deepak Chopra?”, (Mr Chopra is a prominent Indian-born American author).

This comment triggered an investigation that uncovered claims that the consultant had told a colleague who was in a same-sex relationship that “people like you can’t get pregnant”.

In light of the comments, and the consultant’s prior formal warning, Energy Australia dismissed the consultant.

The Fair Work Commission’s decision

Deputy President Millhouse rejected the consultant’s argument that Energy Australia’s investigation was a “targeted attack” because he had recently requested to take stress leave for reasons unrelated to the investigation.

The Deputy President found that Energy Australia had a valid reason for dismissing the consultant based on the “offensive and discriminatory” statements made to colleagues, which clearly breached company policy.

Lessons for employers

Amongst other things, the case highlights the importance of properly drafted workplace policies. A Code of Conduct and/or Anti-Discrimination Policy which clearly sets out that derogatory or offensive comments are prohibited in the workplace is a useful tool in justifying disciplinary action against an employee whose behaves inappropriately in the workplace.

How we can help

EI Legal frequently represents clients in claims in unfair dismissal. We can also assist in reviewing and drafting employment documentation such as employment contracts and workplace policies.

Our sister company Employment Innovations has a number of subscription packages available to employers which include unlimited workplace advice and access to template policies and other HR documents.

Please contact us if you require any assistance in this area.

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