When Offensive Comments Don’t Always Justify Termination

There’s no doubt that derogatory or inflammatory comments about religion or ethnicity have no place in a respectful workplace. Employees should always treat colleagues with dignity and be mindful of the diverse backgrounds that make up modern Australian workplaces. But while some remarks may rightly lead to disciplinary action, not every incident automatically justifies dismissal—as shown by two unfair dismissal decisions cited by the Fair Work Commission in Mt Arthur Coal Pty Ltd v Goodall.

In Anderson v Thiess Pty Ltd, Mr Anderson was dismissed after he distributed anti-Muslim propaganda via the company’s email system. He had previously been informally told not to send emails on this topic. While the Commission found there was a valid reason for dismissal, it held that the dismissal was harsh because of the serious personal and economic impact it had on Mr Anderson, and unreasonable because the employer’s conclusion that his conduct was wilful was not reasonably supported by the available evidence. Although the Commission declined to reinstate him due to his lack of contrition and failure to accept the seriousness of his actions, it did award compensation in recognition that the dismissal, in all the circumstances, was unfair.

In Johnpulle v Toll Holdings Ltd, Mr Johnpulle made taunting remarks to an Afghan co-worker, linking the colleague’s background and religion to terrorism. He too had been previously cautioned, albeit informally. While this behaviour was found to provide a valid reason for dismissal, the Commission again held that the dismissal was harsh, largely due to Mr Johnpulle’s long service, age, and the disproportionate severity of dismissal given the absence of formal sanctions for earlier conduct.

Importantly, the Commission observed:

“The evidence suggests that there is either a lack of awareness by Mr Johnpulle of appropriate workplace conduct or a disdain of the need to treat others at work with respect... Just as Mr Johnpulle would be appalled if his co-workers made assumptions about his background, so he must understand that it is totally inappropriate to make assumptions about others.”

The message here is clear: respect and cultural awareness are essential in any workplace. But it also recognises that not all dismissals—even where misconduct is present—are automatically fair. The Commission has consistently said that context matters, including how the employer handled earlier incidents, the employee’s record and response, and the actual harm caused.

These decisions don’t excuse inappropriate conduct. Far from it. They highlight the need for workplaces to not only set clear expectations around respectful behaviour but also to provide training, engage in genuine discussion, and apply fair disciplinary processes. As the Commission put it, policies alone aren't enough—real understanding comes from education and ongoing dialogue.

For employees, these cases serve as a dual reminder: be respectful at all times—but also, if you believe your dismissal was unfair, you have a right to challenge it, especially if the process lacked fairness, proportionality, or context.