The story begins with a Manager and employee working together on the 26th of May 2018. A discussion was had between the two around whether the heater should be turned on – the employee wanted the heating on. The Manager said she didn’t want the heater on because she didn’t feel cold, to which the employee responded by saying that the reason she didn’t feel cold was that she had “natural extra padding”.
Following a disciplinary process, the employee was dismissed and made an application to the Fair Work Commission for unfair dismissal. During the Fair Work Commission hearing, the employee confirmed that she did in fact make that comment, however, tried to apologise an hour later. The Manager refuted this, saying there was no apology, rather a futile attempt at justifying the comment. The Manager told the Commission that the employee said her comment was not intended as a personal attack, and she was just stating a fact that people with extra weight/padding do not feel the cold.
When asked during the unfair dismissal hearing why the comment was made, the employee explained her reasons to be the following:
- She was trying to make an argument to get the heater turned on;
- The Manager did have more padding than she and the others in the room at the time;
- It is a scientific fact that people with more body fat do not feel the cold as much as skinnier people, and that is perhaps why the Manager would not have felt the cold like she and the other colleagues were feeling it;
- Her conception of someone having “more body fat” was that they have more body fat than is healthy;
- The comment was not personal and she did not intend to hurt the Manager’s feelings;
- She meant padding in terms of insulation and she did not mean to be derogatory;
- She did not think the Manager would be so offended or take the comment so seriously given the context of their relationship; and
- She felt the Manager would see the humour in her comment and did not intend to shame her.
After considering the evidence, the Commission found the employee’s dismissal to be fair. However, it wasn’t the comment alone that lead to this decision – it was found that the employee had received two prior warnings that year for breaches of Company policy, with the second warning being a final written warning. The final written warning stated:
“any further breaches of [the Company] policies and procedures or any unacceptable behaviours by you, will result in termination of your employment.”
The Commission made the comment that because the employee had recently been disciplined by the company, it was reasonable to assume she would be aware of the company’s expectations.
This case is a good example of a fair process that was followed by a company, leading to a dismissal that met all the required criteria to be considered fair by the Commission.
Decision: https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc38.htm
