BHP Coal was wrong to sack a male employee for telling a “vulgar” sexually explicit “joke” at work to two female colleagues who found the comment offensive and “totally sick”, the Fair Work Commission has found.
While they were travelling in a work car together at BHP’s Peak Downs Mine in Queensland in 2018, one of the women said she had a headache, and the man said: “If my old girl has a headache, I crush up Panadol, rub it on my old fella and tell her she can either have it orally or anally.”
Commissioner Jennifer Hunt ultimately upheld the dismissal, finding the man falsely claimed he made the joke in response to “sexualised talk” by the two women.
She said the “slur” against the women was “most foul” and his false allegations were a valid reason for his sacking.
But she found the reasons given for the dismissal — the telling of the “joke” and the man’s conduct during a later meeting with management — were not a valid reason for the dismissal.
She said although the crude joke might easily offend others, there were “many people who would find the joke amusing”, even if they were to admit it “crossed the line” and considered it too much in a workplace.
In light of the findings, the Australian Chamber of Commerce and Industry’s workplace relations director, Scott Barklamb, asked “how many jokes does it take before employers can take action?”
“What if, for example, the joke made to another employee is a ‘rape’ joke — the FWC has effectively said in such an instance we would be left completely unable to take any action to dismiss an employee for such an instance of sexual harassment.”
Ms Hunt said “many people have told a crude joke in the workplace, and I do not consider it appropriate that it should result in a loss of employment, even if it is in breach of a company’s workplace policies, code of conduct or charter values”.
“A one-off joke should be appropriately dealt with, and appropriate warnings implemented. Termination for a single offence is, in these circumstances, far too harsh a punishment,” she said.
Questioned by two managers, the man insisted the joke was funny, telling them the best way to tell it was to use a “croaky or creepy voice, and then a doctor’s voice towards the end — he then demonstrated it”.
BHP cited this conduct as a reason for sacking him but Ms Hunt said it was quite extraordinary the investigators would take such offence at him repeating the joke.
She had questioned the female supervisor about her attitude to “sexual talk” and swearing in the workplace. While “bloody” and “shit” were tolerable, the supervisor would “pull people up” if they used the “f-word” or “c-word”.
Ms Hunt said the woman’s attitude was “prudish”.