DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Hand
v
Campbelltown Radio Pty Ltd T/A C91.3FM Radio
(U2018/7760)

Application for an unfair dismissal remedy – alleged misconduct – alleged racist slur made on air during radio program – failure to report promptly – comment not racist – applicant apologised and was remorseful – dismissal harsh – compensation ordered.

[1] On 26 July 2018, Mr Peter Hand (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (the FW Act) in relation to the termination of his employment by Campbelltown Radio Pty Ltd T/A C91.3FM Radio (the respondent) on 5 July 2018.

[2] The applicant’s letter of termination relevantly stated:

‘By letter 29 June 2018, a number of allegations were made against you. These allegations were accompanied by audio of inappropriate comments you made on air on Monday 25 June 2018. You were given an opportunity to respond.

The Company took some time to consider your response to the allegations. After due consideration, you were advised the matter was serious and the Company was considering terminating your employment. You were given the opportunity to provide any reason why your employment should not be terminated.

The company has taken all matters into consideration and has decided to terminate your employment. This decision has been made in light of the following:

1. You used the words ‘great, big, black bastard’ on air on Monday 25 June 2018 when describing Joe Jackson. Further you went on to use the word ‘bastard’ at least three more times following the original comment, in an attempt to explain your comments.

2. You failed to promptly report the comments you made on air to Management.

3. You are employed as a Senior Journalist at Campbelltown Radio (C91.3fm) and you have extensive experience.

4. Your actions on air are in breach of the Commercial Radio Code of Practice, specifically sections 2.1.4 and 2.2.

5. Your actions on air, and the subsequent failure to promptly report your actions, constitute a breach of your Contract of Employment, signed by you on 5 December 2016, specifically the ‘Termination’ and ‘Duties and Responsibilities’ clauses.

6. Your actions on air, and the subsequent failure to promptly report your actions, constitute a breach in the Company’s Code of Conduct Policy, specifically the sections outlined below

•  ‘Promptly report any violations of law, ethical principles, policies and this Code.’

•  ‘Refrain from any form of conduct which may cause any reasonable person unwarranted offence or embarrassment or give rise to the reasonable suspicion or appearance of improper conduct or biased performance.’

The company has lost its trust in you. There is no alternative but to end your employment.

Your employment will end today, Thursday 5 July 2018. You will be paid your notice period and any statutory leave entitlements that you have accrued. …’

[3] The relevant sections of the Commercial Radio Code of Practice referred to in the letter of termination are as follows:

‘2. Material not suitable for broadcast

2.1 A licensee must not broadcast a Program which in all of the circumstances:

…

2.1.4 is likely to incite in a reasonable listener, hatred against, or serious contempt for, or severe ridicule of, any person or group of persons because of age, ethnicity, nationality, race, gender, sexual preferences, religion, transgender status or disability;

…

2.2 Program content must not offend generally accepted standards of decency (for example, through the use of unjustified language), having regard to the demographic characteristics of the audience of the relevant Program.’

[4] I issued directions for the filing of evidence and submissions, and heard the application on 19 October and 2 November 2018. The applicant represented himself. With permission, T Vernier, counsel, appeared for the respondent.

The evidence

[5] The following people tendered written statements in these proceedings:

•  the applicant; 1

•  Allyson Redondo, former breakfast radio announcer for C91.3FM, the radio station at which the applicant worked before his dismissal; 2

•  Christian McEwan, Drive Presenter and Music Director for C91.3FM; 3

•  Joshua Webster, breakfast radio announcer for C91.3FM; 4

•  Alicia Simmonite, the respondent’s Senior Human Resources Advisor; 5

•  Philip Giblin, the respondent’s General Manager – Radio; 6 and

•  David Archer, Program Director for C91.3FM. 7

[6] All witnesses except Ms Redondo were cross-examined.

[7] In December 2018, well after the hearing had concluded and I had reserved my decision, the applicant emailed my chambers alleging that the respondent had not fully complied with the order requiring production of documents that I issued on 12 October 2018. Specifically, the applicant said that the respondent had not produced the emails to which Mr Giblin referred in paragraph 5 of his witness statement (the 27 June 2018 emails). These were emails that Mr Archer sent to Mr Giblin on 27 June 2018, to provide him with information relating to the incident that led to the applicant’s dismissal. The applicant asked me to order the respondent to produce those emails (again) and allow him to tender them as further evidence. The respondent objected to any further tender.

[8] When the respondent pointed out that it had in fact produced the emails to which Mr Giblin had referred in accordance with my order, the applicant said that he had not received them at the time and that even if he had, the attachments to the emails had not been produced, so the respondent was still in breach of my order.

[9] Upon reviewing the Commission’s records, it is evident that the respondent did produce the 27 June 2018 emails via an email to my chambers on 17 October 2018 (the 17 October 2018 email). The 27 June 2018 emails formed part of a PDF file attached to the 17 October 2018 email.

[10] The 17 October 2018 email was one of 12 received in answer to the order requiring production of documents. The subject line of each of those emails included the phrase ‘(Email [number] of 12)’ to indicate which of the 12 ‘instalments’ of produced documents it contained. I note that the 17 October 2018 email was copied to the applicant at the email address he provided on his originating application form, which he also used to communicate with chambers and the respondent throughout the proceedings. I also note that the applicant has not claimed that he did not receive the other 11 emails that the respondent sent in answer to my order.

[11] Further, I note from the names of the attachments to the 27 June 2018 emails and the contents of those emails that the attachments appear to be audio recordings of the incident that led to the applicant’s dismissal and his subsequent on-air apology, both of which are already separately in evidence, and two ‘.htm’ format attachments titled ‘Untitled attachment 00144’ and ‘Untitled attachment 00153’. The 27 June 2018 emails do not refer to attachments other than the audio recordings, except that the second email (to which ‘Untitled attachment 00153’ is attached) says ‘Apology and follow up comment attached’.

[12] I am satisfied that the respondent substantially complied with my order requiring production of documents. My decision is based on the evidence tendered at the hearing and the written submissions that the parties subsequently filed.

The facts

[13] The applicant worked casually for the respondent from August 2013. 8 He was then employed on a permanent part-time basis as a Senior Journalist from 5 December 2016.9 He worked three shifts per week (22.8 hours). His annual base rate of pay was $45,599.84 plus superannuation. He also worked additional hours as required.10

[14] The incident that led to the applicant’s dismissal took place on 25 June 2018, during an afternoon radio program on C91.3FM, one of the respondent’s radio stations. That program is hosted by Christian McEwan and Annabella Leone. The applicant was the newsreader for the program, so his on-air participation was mostly limited to the periodic news bulletins. However, the applicant would occasionally interject outside of those bulletins to provide light-hearted ‘fact checking’, while the hosts were conversing. 11

[15] It is useful to reproduce an excerpt of the transcript of the incident:

‘MS LEONE: Joe Jackson, which is Michael Jackson’s dad, the Jacksons’ dad, he was hospitalised over the weekend. Did you see this?

MR McEWAN: Yeah, apparently he was - he was a terrible man, from what I’ve heard.

MS LEONE: Was he?

MR McEWAN: Yeah, Joe Jackson, the dad. Hold on, wait – is Joe Jackson his dad, or is he that guy that sings ‘is she really going out with him’? You know that song?

MS LEONE: No, I think it’s the dad. That’s why they’re saying –

MR McEWAN: I think his name is Joe Jackson as well! Is it the same person?

MS LEONE: No.

MR McEWAN: Illuminati confirmed!

MS LEONE: [laughs]

THE APPLICANT: Joe Jackson is a pale little… fellow,

MR McEWAN: OK –

MS LEONE: Yes?

THE APPLICANT: And Jackson, the father of Michael, is a great big black bastard.

MR McEWAN: But they’re both called Joe. Right?

THE APPLICANT: I don’t know, but, ah, you don’t want to be confused. And when I say bastard I mean he’s a bastard, it’s on the record. He treated his kids badly and…

MS LEONE: That’s what I’ve heard.

THE APPLICANT: That’s what caused Michael’s problems.

MR McEWAN: Annabelle’s face…

THE APPLICANT: The other Joe Jackson will never have babies, if you know what I mean.

MR McEWAN: Yes.

MS LEONE: Ah.

MR McEWAN: Ah…Annabelle’s face just went the palest white you’ve ever seen in your life. But no, I understand what Peter Hand is saying.

MS LEONE: I get where you are coming from Pete.

MR McEWAN: It’s well recorded that he was a terrible, terrible person.

MS LEONE: Yes.

THE APPLICANT: Yes I didn’t mean that he was ah…

MR McEWAN: Of course, he was a terrible, terrible person, beatings … anyway.

THE APPLICANT: Bastard he was.’

[16] The audio recording of the incident was played repeatedly during the hearing. It is apparent when listening to it and from other evidence that:

•  after using the phrase ‘great big black bastard’, the applicant was immediately aware he had made an error in so doing – Mr McEwan said he looked ‘very upset’ and ‘shocked’; 12

•  the applicant’s intention in using that phrase was to distinguish between two people named Joe Jackson, one of whom is white, and one of whom is black; he did not intend to make a racial slur implying that all black people are bastards or that Joe Jackson, the father of Michael Jackson was a bastard because he was black; and

•  the program hosts immediately attempted to downplay and move on from the phrase.

[17] Almost immediately afterwards, the applicant told the hosts that he wanted to apologise on-air. Mr McEwan was reluctant, but the applicant insisted. 13 This is what the applicant said, as well as the brief exchange with the presenters that followed:

‘THE APPLICANT: Yeah, I just want to apologise for something that came out, and ah, about Michael Jackson’s dad that I said. Anyone who knows me would know that I did not mean it the way it could be taken. He was, and it’s fully on the record, that he was a terrible man to his children and in many ways. So what I said was to … to highlight that, not to highlight anything else. I am personally upset about what came out but, ah, I apologise.

MR McEWAN: I don’t think you need to mate, don’t you worry about it. It’s fine.

MS LEONE: It’s all right, mate. It’s all good. It’s all good.

MR McEWAN: And you know, no one listens to you anyways.

MS LEONE: laughing.

THE APPLICANT: Ok, I take it all back.

MR McEWAN: He’s gonna throw it down now. Anyway he’s done now, thank you and thank you for your apology. You didn’t need to. I don’t think you needed to but, you know, he’s a big man.

MS LEONE: No, that was very big of you.

THE APPLICANT: I apologise for apologising.’

[18] It is clear that despite being told by the presenters that he need not do so, the applicant apologised for his comment. His final comment was a light-hearted response to Mr McEwan’s suggestion that he need not have apologised, but did not constitute a retraction of the apology.

[19] The applicant then went on to present the 6:00 pm news. He did not phone a manager because, in his words:

‘…they work extremely long hours with diverse responsibilities and I did not want to disturb them after hours and I believed I had done all I could at the time and would advise them face to face in the morning. That decision was also partly based on the perceived latitude and standards allowed on the station and the strong opinion expressed by my colleagues that it was not such a serious incident.’ 14

[20] During the hearing, the applicant played a number of audio clips he had recorded from programs on C91.3FM. These were all recorded in the weeks leading up to the hearing. It is clear from these recordings that light-hearted banter involving sexual references and sexual innuendo is not uncommon on the respondent’s radio station (including on the breakfast show). 15

[21] One of the recordings played involved Ms Leone calling a person ‘a bastard’ for flicking his cigarette from a car window into dry grass at the side of the road. 16 I asked Ms Leone’s co-presenter, Mr McEwan, during his examination whether he thought there was anything wrong with saying on the radio that someone who would do such a thing was a bastard. He replied that he did not.17

[22] Mr McEwan, in commenting on one of the recordings played by the applicant in which he (Mr McEwan) was involved, referred to trying to fix a ‘mis-step’ and turn it into a joke. 18 When asked whether that sort of thing happens often ‘in this kind of radio based on banter’, he said:

‘Yes, I think it does happen where people will have a mis-step during banter and you then do your best to – depending on what you’ve done – withdraw what you said or turn it into something else. That is just – it’s something that we all learn in radio and I attempted to do it there. Not very well, might I add, but I gave it a shot; but it does happen, yes. It doesn’t happen a lot, but it does happen from time to time.’ 19

[23] Mr McEwan said that it was quite rare to give someone an opportunity to apologise on-air for something they had said. 20

[24] The applicant did not contact any managers on the evening of the incident. He agreed during his cross-examination that he could have emailed Mr Giblin or Mr Archer about what had happened:

‘I could have done it but I was busy.’ 21

[25] The applicant also said:

‘I wanted to do it face to face. I believed I’d done all I could. I needed to dedicate my time to the busy last part of the news shift where you prepare the next morning’s news and it’s very hectic, and I’d already lost time, I was having a bad day, it was not good.’ 22

[26] The morning after the incident, the applicant attended work early to talk to Mr Archer. However, the latter did not come into work until 10:30 am. This was the start time for a meeting between Mr Archer, the applicant and the breakfast program presenters Joshua Webster and Allyson Redondo. 23 This was (perhaps ironically) a previously-planned meeting about ‘Codes of Conduct’, organised by Mr Archer. It concerned, as Ms Redondo put it, ‘what could or could not be said on radio’.24 The applicant explained:

‘David turned up just on time when the meeting started. The others were in the room, I couldn’t raise it then and it was referred to in the meeting, and that’s in numerous of the documents.’ 25

[27] At the meeting, there were some veiled references to the incident, which gave the applicant the impression that Mr Archer was already aware of it. Mr Archer had not in fact heard the offending remark at that point, though he had heard at least the last part of the applicant’s on-air apology. 26 According to Mr Archer:

‘During the meeting, Josh and Ally both made remarks referring to code breaches around “colour” and the use of the word “bastard”. It was obvious that there was a “joke in the room”, and that I was not completely aware of the circumstances.’ 27

[28] I am satisfied that after the 10:30 am meeting, Mr Archer was then involved in various other meetings, and so the applicant was unable to speak to him about the incident until about 1:30 pm. 28 When they finally discussed it, the applicant recounted what had happened and explained to Mr Archer that the error was a result of verbally distinguishing one Joe Jackson from the other ‘using their most obvious distinctive feature’.29

[29] The applicant indicated to Mr Archer that he was disappointed by his comments, and felt that he had fallen short of his own standards. Mr Archer said in his statement:

‘I would describe his feelings as “gutted”.’ 30

[30] Once he had had an opportunity to review the content of the previous evening’s drivetime show, during which the incident occurred, Mr Archer referred the matter to Mr Giblin. 31

[31] In the morning of 27 June 2018, Mr Archer emailed Mr Giblin an audio recording of the incident. 32

[32] At about 5:00 pm on 27 June 2018, Mr Giblin told Mr Archer his preference was to take the applicant off air immediately. 33

[33] In his statement, Mr Giblin said that he felt the applicant’s conduct was ‘so egregious and so surprising for such an experienced employee in such a key position of responsibility as to cast doubt about his fitness to remain at work’. He continued:

‘I contemplated the potential for him to make another similar error and concluded that I could not be comfortable taking the risk.’ 34

[34] On 28 June 2018, the applicant sent the following email to Mr Giblin and Mr Archer:

‘Gentlemen

I want you to know that I’ve been deeply anguished since the very moment of the Joe Jackson matter occurring and that I will give my full co-operation in acting to restore the situation.

I hope that we can work through it as quickly as practical as I deeply regret the difficulties caused to everyone.

Sincerely

Peter’ 35

[35] Mr Giblin asked Ms Simmonite to investigate the incident and prepare a letter of allegations to be sent to the applicant. 36

[36] On 29 June 2018, Mr Giblin sent the applicant a letter of allegations, which included the following:

‘It is alleged that on [25 June 2018] you used the words ‘great, big, black bastard’ on air when describing Joe Jackson. Further you went on to use the word ‘bastard’ at least three more times during a period of approximately two minutes.

These allegations are serious and may constitute a breach of your Contract of Employment, Company Policy and the Commercial Radio Code of Practice.

We consider the content of this incident, as outlined above, if established, to be very serious and your employment may be at risk.

A meeting has been scheduled on Monday 2^nd July 2018 10:00am at which time you may present your response to the allegations verbally or in writing. In attendance will be David Archer (Program Director) and Alicia Simmonite (Senior Human Resources Advisor). You are welcome to bring a support person of your choosing to this meeting.’ 37

[37] At the meeting on 2 July 2018, the applicant presented a written response to Mr Archer and Ms Simmonite. He also spoke to the matters raised in the document. The applicant was given an opportunity to bring a support person, but declined to do so. 38 Mr Archer and Ms Simmonite then left the room for at least 20 minutes, during which they discussed Mr Hand’s response with Mr Giblin. Mr Giblin said in his statement:

‘They reported that Peter Hand was clearly upset and distressed, and appeared to be alternating between exhibiting an apologetic and remorseful acceptance of his situation, and an aggressive attitude, dismissing and challenging the company’s allegations. In my opinion, Peter Hand’s unwillingness to accept the legitimacy of the allegations made it impossible to consider anything other than the most serious response. As such, I decided that it was appropriate to require that he show cause as to why his employment should not be terminated, and I instructed David Archer and Alicia Simmonite to re-convene the meeting with Peter Hand and communicate that decision.’ 39

[38] Mr Archer and Ms Simmonite returned to the meeting and Mr Archer told the applicant that the respondent was considering terminating his employment. He was asked to produce a written response setting out why the respondent should not do so. 40 The applicant prepared a show cause response, which he emailed on 3 July 2018.41

[39] The applicant’s show cause response included the following:

‘I believe that in my time as Senior Journalist at C91.3 I have contributed maximum possible energy to exceed the requirements of the position, with effort well beyond my assigned three days.

In terms of the news results, I’ve been told on more than one occasion that I had taken it to ‘another level.’

I saw this job as my transition to retirement, which I am not quite ready for.

I agree there should be very strong sanction over what occurred, but with the initial way the matter was treated, did not expect the possibility of termination. This would obviously cause me undue distress and I believe is inconsistent with other workplace governance.

After being offered this position, I have made it part of the mainstay of my income so such a result would ensure serious hardship.

I would like to propose that a more reasonable response might be suspension, or special requirements being placed on me. I have shown that I am co-operative and comply with direction.

I am aware of more offensive things that have ben said on C91.3 without reprisals.

To not accept that my breach was unintentional is a serious matter indeed.

There is no evidence that I deliberately behaved in a way that damaged C91.3’s reputation, which could only be shown by a significant audience reaction or complaints received or audience research that indicates how many people may have been listening…’ 42

[40] The applicant’s show cause response then went on to describe his employment record with the respondent, emphasising his diligence and enthusiasm, the quality of his work, and his contribution to the general performance of the respondent. He also emphasised his personal views against racism.

[41] Mr Archer, Ms Simmonite and the applicant met again on 5 July 2018. Mr Archer told the applicant at that meeting that the respondent had decided to terminate his employment. He also handed him the letter of termination. 43

[42] According to Mr Archer:

‘I noticed that Mr Hand was disappointed. He became difficult and insulted Alicia and me. He mocked Alicia’s job and said to her words to the effect: “I hope I don’t see you outside.” Alicia looked shocked. 44

[43] Ms Simmonite said that the applicant verbally attacked her, on the grounds of her character, her career choice and her credibility as a Senior HR Advisor. She added:

‘Peter’s last words were particularly disturbing to me as I felt he was making a threat against me personally, stating words to the effect: “I hope I don’t see you outside of this building/the Station.”’ 45

[44] During his oral evidence, the applicant denied that he had ‘vociferously and aggressively’ attacked Ms Simmonite. He said that he did not raise his voice, he was ‘upset, insulted, patronised’ when he felt she had failed to answer reasonable questions he had put to her. 46 However, he agreed that he directed the following words to Ms Simmonite:

‘Good luck with your endeavours in the duplicity trade, I hope you’re proud of what you do for a living. No one can afford to have a friend as an HR person. Duplicity is the name of the game, isn’t it? A person who worries that someone can’t drive home but organises their sacking to fuck up their lives, they worry that – that they get a glass of water and then fires the bullet.’ 47

[45] The applicant said he told Ms Simmonite ‘I hope I don’t run into you again.’ 48

[46] During her cross-examination, Ms Simmonite was asked whether there were any complaints from listeners following the incident. She replied ‘Not that I was made aware of’. 49

Consideration

[47] It is not in dispute that the applicant is a person protected from unfair dismissal. 50 I am satisfied that he is so protected.

[48] Section 385 of the FW Act provides:

‘385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.’

[49] Section 385(a) of the FW Act is satisfied. It is not in contest that the applicant was dismissed with immediate effect on 5 July 2018.

[50] Section 385(c) of the FW Act does not apply in this case, as the respondent is not a small business.

[51] Section 385(d) of the FW Act is satisfied. Neither party contended that the applicant had been made redundant.

[52] The only issue left for me to determine under s.385 of the FW Act is whether the applicant’s dismissal was harsh, unjust or unreasonable.

[53] Section 387 of the FW Act provides:

‘387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.’

[54] The applicant submitted that his dismissal was harsh ‘because it was disproportionate to the true gravity of the offence and its consequences for my personal and economic situation. I relied on that job.’ 51

[55] The applicant submitted that his dismissal was unjust because it was ‘based on one four-second mistake over five years of impeccable service’. 52

[56] The applicant submitted that his dismissal was unreasonable because the respondent ‘refused to fairly examine the matter, including properly examining the actual words said on air in relation to the various codes and regulations put forward and the full circumstances of the incident.’ In addition, the applicant said that ‘proper process was not followed in several important ways’. 53

[57] I will consider this matter under each of the sub-clauses in s.387 of the FW Act.

Valid reason: s.387(a)

[58] The applicant’s letter of termination indicated that he was dismissed for making certain on-air comments on 25 June 2018, as well as for failing promptly to report the incident to management.

[59] The offending comments include the reference to Michael Jackson’s father being a ‘big black bastard’, as well as to the repeated use of the term ‘bastard’.

[60] During the hearing, Ms Simmonite said that in her view, the use of the term ‘bastard’ was a breach of the Commercial Radio Code of Practice. When it was put to her that other presenters had used the word ‘bastard’ on air and had not had any action taken against them, she replied that the audio of the incident was the first example that she had heard of the use of the word ‘bastard’ on air. 54 She did, however, make clear that the applicant’s employment was not terminated only for the use of the word ‘bastard’.55

[61] During the hearing, Mr Giblin said that he did not see that the use of the word ‘bastard’ itself was key to what happened to the applicant. 56 Indeed, he implicitly acknowledged that the letter of termination was in error in referring to the repetition of the word ‘bastard’ as grounds for dismissal.57

[62] It is clear from the evidence concerning previous use of the term ‘bastard’ on air by another presenter without any action taken against them, Mr McEwan’s testimony about the use of the term, and the concession made by Mr Giblin, that the applicant’s use of the word ‘bastard’ in and of itself should not be seen as misconduct, let alone part of a valid reason for dismissal. If the respondent wishes to stop its presenters from using the word, they need to make this very clear to their employees.

[63] The more serious matter is the applicant’s use of the phrase ‘black bastard’ to describe Michael Jackson’s father.

[64] Mr Giblin said that ‘in 2018 there is a lot of sensitivity to racial matters’. 58 When it was put to Mr Giblin that there was a lot of risqué language used on the respondent’s station and it was hard to see why the applicant’s conduct was singled out for dismissal, especially as it seems to have been a mistake, he responded:

‘I would say that there is a categorical difference… between a racial slur and innuendo or risqué language on the air… a racial slur is of a different breed to the examples that the Commission heard a couple of weeks ago. Racial issues are something about which there is a very high level of sensitivity in the community. I want to ensure that the radio stations I am responsible for stay on the right side of that argument. I think there is great damage … for stations or media that don’t stay on the right side of it. I feel it can escalate quite out of hand. The other factor that for me is important here is that Mr Hand is our senior journalist. It’s a role in the radio station that is central in the way the station upholds all those important values that we try to uphold. The senior journalist is the person on the radio station who is least expected to be saying anything like this. So taking that into account and Mr Hand’s – what was made clear to me and what was apparent to me was his unwillingness to accept that. It’s the combination of factors that go to the decision to dismiss him.’ 59

[65] I wholeheartedly endorse Mr Giblin’s refusal to tolerate racist remarks on the radio. However, I am not satisfied that, when viewed in its proper context, it is accurate to describe what the applicant said as a ‘racial slur’.

[66] The term ‘black bastard’ is deeply objectionable because it implies either that the person in question is reprehensible because he or she is black, or that black people are generally reprehensible. However, it is quite clear from listening to the audio clip of the incident that the applicant was not using the phrase in this way at all. It was, in effect, not in dispute that the person in question was reprehensible, but there was some doubt about his identity – was he the same person who sang ‘is she really going out with him?’ No, the applicant tried to point out; that singer is white (and small), while the reprehensible person in question is black (and apparently, big). It is completely clear that no racist slur was intended. Michael Jackson’s father was reprehensible because of the way he had (allegedly) treated his children – it had nothing at all to do with his colour.

[67] Nevertheless, it is inappropriate for phrases such as ‘black bastard’ to be used on the radio (or anywhere else) in any circumstances, because they could be seen as racially derogatory, even though the phrase was not intended to be so in this case. It is clear that as soon as the offending words fell from the applicant’s mouth, he realised he had made a mistake and immediately tried to correct himself. He insisted on apologising on-air against the objections of Mr McEwan. I do not consider that the downplaying and banter that followed the apology genuinely amounted to a retraction of the apology.

[68] I am certainly satisfied that the applicant did not breach s.2.1.4 of the Commercial Radio Code of Practice (the section of the code that is most directly relevant to racist remarks). While I am satisfied that his comments might well ‘incite in a reasonable listener… serious contempt for, or severe ridicule of’ Michael Jackson’s father, this was not because of his ‘age, ethnicity, nationality, race, gender, sexual preferences, religion, transgender status or disability’. Rather, it was because of the (alleged) way he treated his children.

[69] I do accept, however, that the words used were in breach of s.2.2 of the Commercial Radio Code of Practice, in that they offend generally accepted standards of decency.

[70] When asked why it was decided not to apply a lesser sanction than dismissal, Mr Giblin said:

‘…I would once again return to the other issues involved with this, one being the failure to notify which is an extremely serious issue as far as I’m concerned. If anything occurs on the radio station that may draw complaints, it is both our policy and the standard protocol that management would be notified immediately. It’s the oldest rule in the book that, you know, you do something wrong, you ‘fess up as soon as you possibly can. That’s the way you avoid, you know, the worst sanction that may come your way. … that’s what we can respect about someone who has done the wrong thing, that they quickly ‘fess up. … it shows their good faith, and their good character. … It’s very serious that nothing occurred that evening and I’m not aware of any really sensible genuine reason why Peter Hand could not have called myself or David…’. 60

[71] Mr Giblin also considered that Mr Hand’s attitude, as exemplified by his response to the show cause letter, indicated he ‘had no respect at all for the fact that he was being called out for issues that were important to us.… it seemed to be a very belligerent attitude from the get go… and it’s something I found extraordinary.’ 61

[72] The letter of termination referred to the applicant’s failure to ‘[p]romptly report any violations of law, ethical principles, policies and this Code’ 62 (referring to the Company’s Code of Conduct).

[73] I accept that the applicant should have reported the incident to management on the evening that it occurred, and that his failure to do so was an error of judgment and a breach of the respondent’s Code of Conduct. However, the applicant did report the matter as soon as he could the next day. He understandably wanted to discuss the incident face to face with his manager – rather than sending an email or text message. Moreover, I am satisfied that – despite what Mr Giblin thought – the applicant’s delay in reporting the incident was not because he underestimated the gravity of what he had done. The evidence on this is quite clear:

•  after using the phrase ‘great, big, black bastard’, the applicant was immediately aware he had made an error in so doing (noting Mr McEwan said he looked very upset and shocked), and insisted on making an immediate on-air apology;

•  when the applicant reported the incident to Mr Archer, he said that he was disappointed by his comments, and felt that he had fallen short of his own standards. Mr Archer described the applicant as ‘gutted’;

•  in his email of 28 June 2018 to Mr Archer and Mr Giblin, the applicant said that he had been ‘deeply anguished’ since the very moment of the Joe Jackson matter occurring; and

•  in his show cause letter, he agreed that he should be subject to a serious sanction.

[74] None of this suggests that the applicant was unaware of the significance of what he had done, or that he had been unwilling to ‘‘fess up’.

[75] In summary, the applicant used the offending words by mistake. The words, when considered in their context, did not amount to a ‘racial slur’ (though it was nevertheless wrong for the applicant to use them, and as a senior journalist he should have done better). The applicant immediately realised his error and insisted on apologising on-air. He reported the incident to management – though later than he should have. He was remorseful and understood the error he had made.

[76] Having regard to all the circumstances, I am not satisfied that the applicant’s conduct constituted a valid reason for his dismissal.

Notification of that reason and opportunity to respond: ss.387(b) and (c)

[77] The applicant was clearly put on notice in the letter of allegations of 29 June 2018 of the respondent’s concerns about what he had said on-air on 25 June 2018. He was given an opportunity to respond on 2 July 2018, and again in his show cause response on 3 July 2018. However, he appears not to have been notified initially that the respondent was also considering dismissing him because of his failure to report the incident promptly. This aspect of the procedure weighs in favour of the dismissal being unfair.

Unreasonable refusal of support person: s.387(d)

[78] The applicant was given the opportunity to have a support person present at the relevant meetings.

Warnings about unsatisfactory performance: s.387(e)

[79] This criterion is not applicable to this application. The applicant was dismissed for misconduct, not poor performance.

Size of employer’s enterprise and absence of human resource management expertise: ss.387(f) and (g)

[80] The respondent is a sizeable business with four full-time equivalent human resources employees across the group of companies to which it belongs. I am satisfied that the respondent’s processes in the lead-up to the applicant’s dismissal broadly reflect what would be expected of such an employer, apart from its failure initially to notify the applicant about its concerns relating to the applicant’s delay in reporting the incident to management.

Other relevant matters: s.387(h)

[81] I do not consider that there are any other relevant matters that I should take into account.

[82] In conclusion, I am satisfied that the applicant’s dismissal was harsh because it was disproportionate to the gravity of his misconduct.

Remedy

[83] The applicant indicated during the hearing that he was not seeking reinstatement. 63 I am satisfied that an order for the payment of compensation to the applicant is appropriate in all the circumstances.

[84] Section 392 of the FW Act provides as follows:

‘392  Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.’

[85] A Full Bench has stated:

‘[16] The well-established approach to the assessment of compensation under s.392 of the FW Act, taking into account the matters specified in s.392(2), is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket.  This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages. Under that approach, the first step to be taken in assessing compensation is to consider s.392(2)(c) – that is, to determine what the applicant would have received, or would have been likely to receive, if the person had not been dismissed. In Bowden this was described in the following way:

“[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

‘... we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.’

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’...”

[17] The identification of this starting point amount “necessarily involves assessments as to future events that will often be problematic”. Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.’⁶⁴ (references omitted)

[86] In this case, the applicant had about five years’ service with the respondent at the time of his dismissal. The evidence is that apart from the incident that led to his dismissal, the respondent was happy with his performance. 65 In the circumstances, I would determine his anticipated period of employment as one year.

[87] The applicant was employed on a permanent part-time basis. He worked three shifts per week (22.8 hours). His annual base rate of pay was $45,599.84 plus superannuation. He also worked additional hours when required. He earned $57,584 in the 12 months prior to his dismissal. The starting point is therefore $57,584 plus superannuation.

[88] Remuneration earned from the date of dismissal to the date of any compensation order is required to be taken into account under s.392(2)(e). Remuneration reasonably likely to be earned from the date of any compensation order to the date the compensation is paid is to be taken into account under s.392(2)(f). Any remuneration likely to be earned after that date to the end of the period of anticipated employment determined for the purpose of s.392(2)(c) is a relevant amount to be taken into account under s.392(2)(g), in accordance with the Sprigg formula.⁶⁶

[89] The applicant was paid four weeks’ notice ($3500). He had earned nothing further between his dismissal and the hearing. There is no evidence either way concerning his effort to mitigate his damages. I make no adjustment for this factor. The industry is a small one and the applicant’s skills are relatively specialised. Nevertheless, I consider it likely that he will be able to obtain at least some casual work prior to the end of the period of anticipated period of employment. I would deduct a figure of $10,000 to take this into account, leaving a figure of $44,084 (plus superannuation).

[90] The applicant’s length of service is a neutral consideration.

[91] I am satisfied that an order for compensation would not affect the viability of the respondent’s enterprise.

[92] While I have found that the applicant’s conduct did not amount to a valid reason for dismissal, it was nevertheless misconduct. He should not have used the words he did, and he should have reported the incident more promptly. Accordingly, I have decided to reduce the amount of compensation payable by $15,000, leaving a figure of $29,084 (plus superannuation.

[93] I estimate the compensation cap to be $28,782 (being half of the applicant’s earnings in the 12 months prior to dismissal). As this is less than $29,084, it is the amount that should be paid as compensation. I do not see any reason for it to be paid in instalments.

Conclusion

[94] The amount of compensation which is derived from the above considerations is $28,782, plus applicable superannuation, less deduction of any tax as required by law. I consider that is an appropriate amount of compensation in all the circumstances. I will issue an order to this effect with this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

P Hand, the applicant, in person.

T Vernier, counsel, for Campbelltown Radio Pty Ltd T/A C91.3FM Radio.

Hearing details:

Sydney.

2018.

October 19.

November 2.

Final written submissions:

Peter Hand: 21 November and 21 December 2018.

Campbelltown Radio Pty Ltd T/A C91.3FM Radio: 7 December 2018.

Printed by authority of the Commonwealth Government Printer

<PR704678>

 1   Exhibits 4, 5 and 7.

 2   Exhibit 1.

 3   Exhibit 2.

 4   Exhibit 3.

 5   Exhibit 9.

 6   Exhibit 13.

 7   Exhibit 14.

 8   Exhibit 4 [2]; exhibit 9 attachment A.

 9   Ibid.

 10   Exhibit 9 [8].

 11   PN232.

 12   PN517.

 13   Exhibit 4 [9]-[10]; PN519.

 14   Exhibit 4 [12].

 15   PN185-9.

 16   PN190-1.

 17   PN494.

 18   PN489.

 19   PN515.

 20   PN525.

 21   PN1071.

 22   PN1074.

 23   Exhibit 4 [13]; PN1096.

 24   Exhibit 1 [5]-[6].

 25   PN1096.

 26   Exhibit 14 [5]-[6]; PN2293-301, 2405-7.

 27   Exhibit 14 [8].

 28   PN1096-107; exhibit 4 [20].

 29   Exhibit 4 [21].

 30   Exhibit 14 [17].

 31   Ibid [24].

 32   Ibid [28].

 33   Ibid [29].

 34   Exhibit 13 [10].

 35   Ibid attachment A.

 36   Ibid [15].

 37   Ibid [16], attachment B.

 38   Exhibit 14 [36].

 39   Exhibit 13 [22].

 40   Exhibit 14 [41].

 41   Exhibit 9 [27]-[28].

 42   Ibid attachment I.

 43   Exhibit 14 [48].

 44   Ibid [50].

 45   Exhibit 9 [46].

 46   PN1457.

 47   PN1464.

 48   PN1465.

 49   PN1703.

 50   Fair Work Act 2009 (Cth) s.382.

 51   Applicant’s closing submissions [3].

 52   Applicant’s closing submissions [4].

 53   Applicant’s closing submissions [5].

 54   PN1617.

 55   PN1933-4.

 56   PN1959.

 57   PN1964.

 58   PN1967.

 59   PN1972-3.

 60   PN2031.

 61   PN2031.

 62   Exhibit 13 attachment E.

 63   PN2479-88.

64 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206 (‘Double N v Humphries’).

 65   See, for example, a comment made by Mr Archer to that effect reported by Ms Simmonite in her notes of the meeting on 2 July 2018: Exhibit 9 [18].

66 Double N v Humphries [2016] FWCFB 7206 [31].