Be careful what you say in the workplace

A recent unfair dismissal case heard by the Fair Work Commission provides a stark reminder that you should always be careful of what you say in the workplace. This is particularly true when it comes to insulting coworkers, which can often be deemed as bullying or harassment.

In this case – James Chol v Vivesco Pty Ltd [2024] – the Fair Work Commission took a hard line with the worker for fat-shaming a colleague. This is not the first time we’ve seen the commission punish an employee for fat-shaming. Later in the article, we also look at an unfair dismissal case where a worker told her boss she had “natural extra padding.” Dismissed worker called coworker “fat exploiter of foreigners”

Gardener dismissed for fat-shaming coworker

James Chol commenced employment with landscaping and gardening company Vivesco Pty Ltd as a casual gardener in October 2022, later becoming a permanent employee. According to Mr Chol, issues with his employer began to surface in mid-2023 when he felt he was being subjected to discriminatory work practices.

He told the Fair Work Commission that he was unfairly targeted by being assigned to the most “physically demanding” sites. Mr Chol claimed Vivesco “deliberately understaffed the sites” that he worked. He also explained that he was frequently paired with coworkers who might be women, older individuals or those with physical limitations, thus making his work harder.

Additionally, Mr Chol claimed he was provided with substandard equipment, including an old ute without air-conditioning. These circumstances, he believed, were part of an orchestrated effort to force his resignation.

“Passive-aggressiveness and gaslighting”: Gardener raises concerns

In December 2023, Mr Chol emailed Vivesco’s managing director about his concerns. He described the rostering arrangements as unfair and manipulative. However, the general manager responded by saying he disagreed with everything Mr Chol had raised. The duo then had an in-person meeting which did not resolve these issues. Mr Chol told the Fair Work Commission that the general manager resorted to “accusations, passive-aggressiveness and gaslighting” during their conversation.

With Mr Chol’s complaints left unresolved, his experience at Vivesco took a turn for the worse in December 2023. This was when several employees began complaining about his behaviour. The general manager received numerous reports describing Mr Chol as aggressive and erratic.

One incident on 19 December 2023 involved an altercation between Mr Chol and a coworker. The coworker said that Mr Chol called him a “liar” and a “fat exploiter of foreigners” during a dispute over a lawnmower. The coworker claimed Mr Chol’s comments were unprovoked and aggressive, leading him to file an incident report. When the coworker said the language was not appropriate, Mr Chol told him “I f**king dare you” to tell the general manager.

Gardener sends strange text

Another coworker complained about Mr Chol after he received a bizarre text message from him. The message included a picture of an aeroplane and a claim that Mr Chol was one of Australia’s wealthiest men and that he was heading to his billon dollar resort in Port Douglas. Mr Chol told the Fair Work Commission that the coworker was afflicted with “imposter syndrome.” He also claimed that the coworker “liked to appear successful and wealthy.” He said that his message aimed “to show him he was aware of his ‘manipulations.'”

The coworker recounted another incident where Mr Chol stood over him in an intimidating manner and called him a narcissist. Mr Chol told the coworker that he was able to see through people and that he should not be underestimated.

Mr Chol, who is of African origin, told the Fair Work Commission in his unfair dismissal claim that he was racially insulted by a South American coworker. He alleged the coworker, who spoke Spanish, used the word “negra” while talking to others nearby. Mr Chol was aware that this word meant “black” and believed it was used in reference to him.

Gardener gets clipped

Vivesco’s general manager told the Fair Work Commission that he had an obligation to maintain a safe working environment for all employees. In February 2024, he sought advice from an external human resources advisor who confirmed that Mr Chol’s conduct posed a health and safety risk.

That month, Mr Chol told the general manager that he needed to take leave for mental health reasons. Two days later on 9 February 2024, Vivesco sent Mr Chol a dismissal letter, outlining that his behavior was harmful to colleagues’ wellbeing. The letter referred specifically to allegations of bullying and harassment.

Fair Work Commission calls out gardener’s fat shaming

At Mr Chol’s unfair dismissal hearing, the Fair Work Commission recognised that Vivesco had denied him procedural fairness. Specifically, he was not notified of the bullying allegations or given a chance to respond. However, the commission soon turned to the complaints of bullying made against Mr Chol. It started with the incident when he called his coworker a “fat exploiter of foreigners.”

“…it is entirely unacceptable for a person to ‘fat shame’ a coworker. There is no justification for it,”

the Fair Work Commission said.

The commission also took issue with Mr Chol calling his coworker a liar and swearing at him “in a threatening way.” It found that Mr Chol’s “aggressive outburst” constituted serious misconduct and provided a valid reason for dismissal.

Gardener slammed for “offensive and abusive” behaviour

The Fair Work Commission acknowledged that several of the complaints made against Mr Chol had not been validated. However, some where proven, including the bizarre text he sent to a coworker, which the commission deemed “sarcastic and belittling.” It also deemed Mr Chol calling the coworker a narcissist “offensive and abusive.”

It was conceded by the commission that these incidents weren’t “of the order of seriousness” of the fat-shaming incident. But they were still “inappropriate” and contrary to the company’s policies.” The Fair Work Commission also found that the general manager’s concern that Mr Chol was a threat to the wellbeing of Vivesco’s staff “well founded.” This was also deemed a valid reason for dismissal.

Fair Work Commission rejects unfair dismissal claim

While acknowledging the procedural deficiencies with Mr Chol’s sacking, the Fair Work Commission felt these were outweighed by the “gravity of Mr Chol’s misconduct.” The commission also rejected the gardener’s argument that his working conditions were part of a plan to force his resignation. The alleged racial remark by another employee was also deemed irrelevant to the fairness of the dismissal.

Ultimately, the Fair Work Commission concluded that the dismissal was not harsh, unjust or unreasonable. It highlighted the necessity for employers to balance valid reasons for dismissal with proper procedural conduct. However, it was noted that even with procedural fairness, the outcome would likely have remained the same due to the gravity of the misconduct.

Worker fired for saying boss had “natural extra padding”

Another unfair dismissal case where the Fair Work Commission slammed a worker for fat shaming a colleague is Julia Bastoni v ORC International Pty Ltd [2019]. Julia Bastoni began working for ORC International as a market research interviewer in February 2010. She also served as a National Union of Workers delegate. The incident that saw her dismissed took place on 26 May 2018. On that day, Ms Bastoni was working with her supervisor.

Things turned ugly when Ms Bastoni asked to turn the heating on. She had asked as it was commonly accepted that only supervisors were authorised to make such a decision. However, the supervisor said that she did not feel cold. This was when Ms Bastoni let slip that the supervisor was feeling that way because she had “extra padding.” She then further put her foot in it by saying the supervisor had “natural extra padding.”

The supervisor told the Fair Work Commission that she felt “humiliated” by the comment and feared that it was heard by others.

“It’s a scientific fact”: Worker doubles down on insult

In her unfair dismissal claim, Ms Bastoni laid out a list of justifications for her comment to the Fair Work Commission. She argued it was said in order to get the heating turned on and stated that her supervisor “had more padding than she and the others in the room.” Ms Bastoni also claimed that it was a “scientific fact that people with more body fat do not feel the cold as much as skinnier people.”

She however claimed that the comment was “not personal” and that she did not intend to hurt her supervisor’s feelings. Ms Bastoni also said that she did not think her supervisor would be offended given their relationship. She also thought she would “see the humour in her comments.” Ms Bastoni claimed the room’s temperature “would have been below 16 degrees and for, you know, and probably a lot lower than that.”

Supervisor “threatens” worker

Ms Bastoni also told the Fair Work Commission that around an hour after the incident her supervisor confronted her. She claimed her supervisor “came within two inches of [my] face” and threatened to send her home if another incident occurred. Ms Bastoni then attempted to explain her comments to her supervisor, outlining the same justifications she gave to the Fair Work Commission.       

The supervisor, however, told a different story. She told the commission that she did not approach Ms Bastoni in an intimidating way. She denied she was two inches from her face and that she simply told her “what you said to me is very inappropriate and against our policies and guidelines.”

Ms Bastoni claimed that she apologised to her supervisor. However, the supervisor denied this happened and that Ms Bastoni instead “tried to rationalise” her comments.

Worker had history of company policy breaches

On the night of 26 May 2018, the supervisor made a complaint to ORC about Ms Bastoni’s “extra padding” comments. At the same time, she made a complaint about a Facebook message Ms Bastoni sent her on 7 April 2018. The message was sent after Ms Bastoni was sent home for using her mobile phone at work, a violation of company policy.

In the message, Ms Bastoni expressed her frustration with the supervisor’s decision and the company’s policy, describing the rule as “demeaning and childish.” She questioned the supervisor’s strict adherence to company rules,

“I know you are a stickler for the rules but I wonder if they pay you enough to feel good about undercutting me?”

Ms Bastoni said in the message.

She had previously been counselled by ORC for numerous previous breaches of company mobile phone policy. These breaches variously resulted in her being sent home, invited to disciplinary meetings and receiving a written warning. In one incident, a manager had seen Ms Bastoni eating ice cream at her desk. When the manager said that was not allowed, Ms Bastoni threw her spoon to the side and sculled the ice cream.

Fat-shaming worker gets fired

On 5 June 2018, ORC summarily dismissed Ms Bastoni for the fat-shaming incident and the Facebook message. The company stated the incidents violated ORC’s bullying and harassment policy. “This is not the first time you have been cautioned and given a formal warning with regard to your behavior at ORC International,” Ms Bastoni’s termination letter stated.

She subsequently filed an unfair dismissal claim with the Fair Work Commission. She argued that she was not in the wrong. And that, in fact, “there seems to be some basic science to the effect that skinny people experience the cold more than overweight people.”

Ms Bastoni said that while it may be “indelicate” to point out such a fact, there was a “utilitarian justification” for doing so. She claimed she “got a result for the greater good of her colleagues; that is, a warmer work environment on a cold Melbourne morning.” Ms Bastoni also maintained that “not every insensitive remark in a workplace lurks as a potential basis for an employee’s dismissal.” She maintained her remarks were “euphemistic” rather than derogatory.

 “Cruel, insulting”: Fair Work Commission slams worker

The Fair Work Commission, however, was having nothing of Ms Bastoni’s claims. It labeled her submissions as “neither impressive nor persuasive.” In particular, the commission said her claim that there was a utilitarian justification for her comments “beggars belief.” It also slammed her claims that the comments were justified on a scientific basis.

The Fair Work Commission found that Ms Bastoni’s behaviour was a clear breach of workplace conduct policies. It characterised her comments as “cruel, insulting, and demeaning.” And it noted that Ms Bastoni had exhibited a “pattern of increasingly belligerent and disruptive behavior.”

“I regard Ms Bastoni’s behaviour as being completely disrespectable and unacceptable,”

Fair Work Commission Deputy President Clark said.

While the commissioned acknowledged that Ms Bastoni was felt aggrieved, it deemed her “sardonic and accusatory tone” was unwarranted. The Fair Work Commission said it was “satisfied her dismissal was not a disproportionate outcome.” Ms Bastoni’s unfair dismissal claim was therefore dismissed.

If you have faced bullying or unfair dismissal, call us today

Our experienced team of workplace mediators can guide you through the process of taking action against your employer. Whether you have faced bullying, adverse action or an unfair sacking, we can help you get justice and compensation. Stuck in a toxic worplace culture and just want to talk, call us.

A Whole New Approach has over 30 years’ experience helping Australian workers in every state and territory take action through the Fair Work Commission. We understand you, we are proud of our staff and the outcomes they get for our clients. Make sure to act fast, however, as there are strict time limits for taking action through the commission.

Call us today on 1800 333 666 for a free, confidential discussion about your situation and how we can help.

Articles similar to: When fat-shaming gets you dismissed

False accusations the best way to respond

Whats my unfair dismissal claim worth