Tribunal backs dismissal for “rainbow boy” remarks
A NSW Ambulance employee who was dismissed for making homophobic comments has failed to have his dismissal overturned. In June, the NSW Industrial Relations Commission (IRC) ruled that the employee had breached his employer’s Code of Conduct for using a variety of highly offensive terms to describe his colleagues. Tribunal backs dismissal for “rainbow boy” remarks and the consequences are important reading.
Tribunal backs dismissal
Let’s look at the events of this case – Knowles v Health Secretary 2022 – and see why the NSW IRC came to its decision. We must warn you, however, that the following features highly offensive and homophobic language.
Foul-mouthed worker engages in regular pattern of homophobic comments
Brian Knowles had commenced working for the Ambulance Service of NSW in 2015 as a Duty Operations Manager. During his tenure, Mr Knowles regularly made crude, disrespectful and often homophobic comments when communicating with his line manager. These comments were made via text and email.
Mr Knowles described his colleagues using a wide range of offensive terms. This included calling them “spastic,” the “retard crew,” “c*ck” and “c*nts.” He also used a variety of homophobic slurs like “lessos” and “rainboy boy.” In a conversation with colleagues, Mr Knowles also called an openly gay co-worker as a “shirt lifter.”
And it wasn’t just offensive comments that marked Mr Knowles’ time at NSW Ambulance. In January 2020, while coordinating paramedic services for an Elton John concert, he helped his manager gain free entry into the concert. This was after his manager made several requests for him to do so.
Ambulance NSW dismisses employee for misconduct
In 2021, Ambulance NSW conducted an internal investigation into the behavior of Mr Knowles. The investigation concluded that he had breached two clauses of the NSW Health Code of Conduct.
Firstly, clause 4.1.2, which says that employees are to “treat all other members of staff… in a way that promotes harmonious and productive working relationships.”
Secondly, Mr Knowles was found to have breached clause 4.2, which directs employees to demonstrate honesty and integrity. He was found lacking in this regard due to helping his manager gain entry to the Elton John concert. Following the investigation, Mr Knowles was dismissed by Ambulance NSW for misconduct in August 2021. He subsequently lodged an appeal against his dismissal with the NSW IRC.
Ambulance worker claims he was “venting”
At his NSW Industrial Relations Commission hearing following his dismissal, Mr Knowles argued that his abusive language was in fact a method of dealing with the frustrations of his job.
“These messages were nothing more than two managers venting their frustrations in what was an extremely stressful job, working in a toxic environment, In 2010, when I had completed my Ambulance Management Qualification (AMQ), I remembered being taught to ‘vent upwards’ when we felt frustrated in the job, and it was part of our manager’s role to listen to these frustrations.”said Mr Knowles.
Mr Knowles acknowledged that his comments was inappropriate. However, he continually attempted to contextualize them, highlighting that his workplace was very stressful and that he was just “letting off steam.”
Mr Knowles also argued that his employer had “no right to trawl through private emails and texts.” Given the private nature of his conversations with his manager, he claimed that he had not breached the Code of Conduct.
“It was disgusting”: Ambulance worker shows contrition for his actions
While Mr Knowles did attempt to lessen his culpability for any wrongdoing that led to his dismissal, he did however admit that the way he had acted was wrong. If the NSW Industrial Relations Commission were to reinstate him in his position, Mr Knowles said that he would apologise to all those colleagues he had insulted.
“…the first thing I would do would be to go to each of those people and apologise to them for my comments,” said Mr Knowles. “That’s the first thing I would do, and I’ll put that on the public record.”
Mr Knowles also shared that he felt ashamed for his behaviour, particularly as he had to explain it to his children. “I’ve had to sit down with my kids and show them those allegations and tell them, ‘This is what’s happened. This is what I’ve done,’ and it was disgusting. It was inappropriate. They were homophobic comments,” said Mr Knowles.
Why the NSW IRC tribunal backs dismissal
NSW IRC Commissioner Janine Webster accepted that Mr Knowles was likely told to “vent up” to cope with his frustrations. However, she said that was no excuse for his behaviour.
“…it is difficult to understand how [Mr Knowles] translated that to mean that it was appropriate to denigrate his colleagues to his manager in emails and text messages,” said Commissioner Webster. Commissioner Webster found that Mr Knowles’ manager had failed to put a stop to his offensive behaviour. She also found that his messages were “evidence of a negative culture and a psychologically unsafe workplace.”
With respect to granting his manager entry to the Elton John concert, Commissioner Webster also found Mr Knowles guilty. She said that the action ran “contrary to the communities’ legitimate expectations of how a person in charge of a public service will discharge their duties.” Ultimately, Commissioner Webster ruled that Mr Knowles’ breaches of the Code of Conduct warranted his dismissal for misconduct.
“… [Mr Knowles] engaged in misconduct in breach of the Code of Conduct in respect of some, but not all, of these allegations,” “I have decided that in the circumstances, the decision to terminate [Mr Knowles’] employment was appropriate.”Commissioner Webster of the NSW IRC
Is dismissal a certainty if an employee makes homophobic or racist comments?
Not all cases of homophobia in the workplace end with the offending employee being dismissed. This was evident in the 2016 unfair dismissal case – Mt Arthur Coal Pty Ltd v Jodie Goodall. In this case, Mr Jodie Goodall had made a series of homophobic, racist and other offensive comments over a two-way radio.
Let’s look at this unfair dismissal case and see why the Fair Work Commission (FWC) ruled in Mr Goodall’s favor.
Mine worker makes homophobic and racist remarks in the workplace
Mr Goodall commenced employment with Mt Arthur Coal in 2011, but it wasn’t until 2015 that his behaviour saw him run afoul of his employer. Before then, he had a stellar record of behaviour and performance with Mt Arthur Coal.
On the night of 11 November 2015, Mr Goodall worked a 12-hour shift operating heavy machinery at a coal site in NSW. During his shift, he used his employer’s radio system to chat to colleagues for almost two hours. While chatting to his colleagues on this public radio channel, Mr Goodall made a series of highly offensive remarks.
Mr Goodall made homophobic and sexual comments about certain colleagues. This included saying that a co-worker was reading a book about “50 ways to eat c*ck” and that another co-worker would “probably like a good teabagging.”
He also expressed derogatory views about a particular race or religion. Mr Goodall stated that a particular religious group “had 1400 years of bloody inbreeding so they gotta be f**ked up.” He also discussed with a colleague how the Australian government should exterminate this particular religious group by “hiring professional hitmen.” These comments were heard by other employees on the radio system, and Mt Arthur Coal soon launched an investigation. This led to Mr Goodall’s dismissal for serious misconduct. He subsequently filed an unfair dismissal claim with the FWC.
Mine worker has dismissal overturned by FWC
The Fair work accepted that Mr Goodall’s remarks were “inappropriate and in breach of a number of Mt Arthur’s policies.” However, it found that his remarks amounted to simply “banter and chat” with his work colleagues, who were “seeking to be entertaining.” It was also found that Mr Goodall didn’t mean to intentionally bully any of his colleagues. For these reasons, the FWC found that disciplinary action was warranted, however not dismissal.
When it came to Mr Goodall’s remarks about the religious group, the Fair work found that these were the “most serious aspect of the inappropriate comments made by Mr Goodall.” However, because he hadn’t directed these comments to anyone at the mine, they were considered only “mid-range on a scale of seriousness,” rather than on the high range.
The Fair work ultimately found that “Mt Arthur had a valid reason to dismiss Mr Goodall related to his conduct.” However, it also found that the dismissal was harsh because of the personal and economic consequences the dismissal had on Mr Goodall and his dependent children. Ultimately, the Fair work ruled to reinstate Mr Goodall. Mt Arthur Coal subsequently appealed this decision and the case was once again heard by the Fair work. However, the appeal was dismissed.
Conclusion to Tribunal backs dismissal for “rainbow boy” remarks
There is certainly no place for homophobic or racist remarks in the workplace. Toxic workplaces should no longer exist. However, sometimes a dismissal for other kinds of offensive comments may not be warranted. It’s always possible that an employer may use an employee’s comments as an excuse to have them dismissed. Its disappointing but some employees make false allegations against other employees because of their failings in their role and want to deflect blame. Plus there are often many other factors that may deem such a dismissal unfair.
If you have experienced this outcome, A Whole New Approach can help you understand your rights. Our team of experienced workplace relations experts can determine if you are eligible to make an unfair dismissal claim. Potentially receive redress through the Fair work, all redundancy, casual employee rights, workplace harassment enquires
Call us today on 1800 333 666 for a free and confidential conversation.
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