Offensive “banter” – on the lower end of the scale of seriousness


Posted By on 5/09/16 at 2:42 PM

By Clea Cole (Lawyer) and Claire Brown (Senior Associate)

A truck driver has won back his job after being dismissed for misconduct which included making lewd, crude, sexist and Islamophobic comments – here is the decision in Goodall v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2016] FWC 4129.

What happened?

Goodall was dismissed from the Mt Arthur coal mine for his conduct on the night of 11 November 2015:

  • his excessive use of the mine’s radio in breach of workplace policies designed to ensure the safety of workers; and
  • inappropriate comments made over the radio – defended as “chat and banter”.

Decision of Commissioner Saunders:

  • Although there was a valid reason (or two!) for the dismissal, it was harsh in the circumstances – Goodall’s exemplary employment record, role as primary breadwinner, and display of contrition etc.
  • Reinstatement was ordered.

Takeaway lessons:

This is another decision in a worrying line which marks a return to emphasis being placed on harshness in the face of a very compelling valid reason – see also the majority decision of the Full Bench in B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 and former VP Lawler’s decision in Quinlivan v Norske Skog Paper Mills (Australia) Ltd [2010] FWA 883.

It will be interesting to see if this one gets appealed. We’ll keep you posted!

KHQ Lawyers - Claire Brown - Principal Solicitor - Workplace Relations & Safety

Claire Brown Principal Solicitor

Claire is a Principal Solicitor in our Workplace Relations & Safety team.  Claire joined KHQ in 2014 with over fourteen years’ experience in operational workplace relations and HR across... Read More