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A public servant warned by his employer over comments he made to an intern about racism and trans rights has succeeded in keeping his name secret, for the sake of his health.
But his claim of unjustified disadvantage at the organisation where he still worked was not successful.
The claimcentred on the response to a complaint over comments he made to a graduate - a person of colour - about racism, trans rights, and the Black Lives Matter movement.
The Employment Relations Authority said in its decision this month that the intern was offended by the comments, made when the two were alone in a meeting room after the end of the working day.
The senior staff member who lodged the claim sought compensation, medical expenses, and costs for what he said amounted to an unjustified disadvantage in his job, as well as breaches of good faith and of his employment agreement.
He argued the warning was unfair for a couple of reasons, including that the same had not been served on another staff member who had held a Christmas-themed event he considered unprofessional.
The employer, whose name and details were also suppressed, argued the warning was both substantively and procedurally justified.
The dispute sprung from a complaint that followed a short meeting in July 2020 with the graduate, who was working temporarily to gain experience.
After giving work-related feedback, the senior staff member then began sharing his views on other matters and made various comments about the graduate, including the person’s name, and initiated discussions about racism, trans rights, the Black Lives Matter movement, and quoted from the film Romper Stomper.
After giving work-related feedback, the senior staff member then began sharing his views on other matters with the intern, who then laid a complaint. Photo / 123RF
He asked where the intern was from, and apparently dissatisfied with the answer, he then asked where the intern’s family was originally from.
His own explanations to the ERA showed that this included a description of the Black Lives Matter movement as involving “propaganda” or “distortion of facts”, even after being informed the intern supported the movement.
The senior staffer also referred to the “intolerance and aggression of some parts of the trans movement” and made reference to his views on what he believed the “pedigree of every human being to be” while quoting from the film Romper Stomper, including using the word “Abos” because “the movie explores attitudes”.
He was later unable to explain why he acted as he did.
The intern then spoke with the department manager about what happened, and a complaint was made to the human resources department.
The organisation’s deputy chief executive decided that the subject matter of the complaint was serious enough to warrant a disciplinary process, and a meeting was scheduled.
Despite his fears for his job and the confusion that the warning created for him, it was made clear that his job was not at stake, but a formal warning could follow.
Black Lives Matter placards in New York. Photo / Tom Gould.
The applicant argued a complaints process should have been followed, rather than a disciplinary process, and that his conduct did not warrant a written warning at all.
He then raised a couple of matters at an investigation meeting in July, including an example of what he considered showed he was being treated unfairly.
He considered it unprofessional that another staff member had had a Christmas-themed display with refreshments which he invited others to share, yet that staff member had not been given a warning.
The ERA said this was not a concern and did not disclose any disadvantage to the applicant.
The authority said the comments made to the intern at the feedback meeting were not work-related. The senior staff member and the intern were not friends, meaning there was no indication the person would be receptive to such comments.
ERA member Claire English also said in her decision that comments that caused offence to other staff could be considered misconduct, and justified a warning.
“The subjects that the applicant raised and the things he himself admits to saying were objectively likely to offend, or cause hurt and distress to others,” she said, adding she was satisfied that the applicant’s comments were of such a nature that they substantively justified the issuing of a warning.
“The applicant showed a consistent inability to understand and accept that he may have genuinely offended (and I suspect, frightened) the graduate - even if he did not intend to do so.
“This lack of insight is a relevant factor in this matter,” English said.
In assessing if the process to issue the warning was procedurally fair, the ERA said it was noteworthy that there was very little difference between the graduate’s view of what occurred and the applicant’s view, except that the applicant did not view his conduct as meriting a warning.
The authority concluded that the applicant had not been able to point to any disadvantage in his employment as a result of his being issued a written warning, and therefore it found no disadvantage had resulted from the warning being issued.
The ERA said there was a high threshold for non-publication, but it was bound in this case by having to respect the opinions of medical practitioners.
That meant the applicant’s health concerns were of such a nature that they justified a departure from the fundamental principles of open justice, and therefore suppression orders were placed on the applicant’s name and identifying details.
The ERA then concluded that also needed to apply to the employer.
