Can a repulsive ‘joke’ lead to an employee’s termination?

A man who was fired for joking about sexual assault has lost his case for unfair dismissal.

Ms Claus-Dieter Hengst was fired for inappropriate conduct after a co-worker inadvertently overheard him making jocular remarks during a conversation with a colleague and took offence to his comments, later reporting him to the CEO.

On 22 September 2015, Hengst was interviewing a co-worker, Mr Terry Mears, in relation to an OHS issue when the two men started talking about an incident in which Mr Mears had struck a kangaroo in his vehicle earlier that morning.

During the closing conversation Hengst asked Mears if he needed any counselling over the incident.

Mears replied, “No”, then adding in a jocular manner, “I wasn’t overly concerned for the kangaroo and it’s not like I knew him personally.”

With that light-hearted tone allegedly established, Hengst went on to make a joke about sexual assault.

The court heard Mears laughingly responded to the suggestion made to him by Hengst.

However the comment and the resulting laughter were overheard by another member of the employer’s staff, Ms Elizabeth Fazakerley, who worked in the same office with Hengst and was seated some two metres from Hengst.

Fazakerley claimed that upon hearing the comment by Hengst she “sharply recoiled” and said: “Claus! That is not appropriate!”

Fazakerley also claimed that Hengst had “caught her eye” before making the comment in question and had then turned to see her reaction as he said it, although Hengst denied having done this.

In his witness statement, Hengst stated that his comment was immediately recognised by himself as a “slip of the tongue that just came out.” As soon as he had said the offending words, Hengst stated that he “tried to recover from it” and make the situation light hearted.

After speaking to Hengst about her discomfort over his comments, Fazakerley then spoke with Mr Evan Munroe, the Chief Executive Officer, who confronted Hengst over his comments.

Despite offering his “profuse apologies” to his boss, Hengst was later dismissed for inappropriate conduct.

Hengst had held the position Disability Support Worker and Workplace Health and Safety Advisor for Town & Country Community Options for 18 years before his employment was terminated.

Hengst filed an unfair dismissal claim, as he told the court he did not believe the conduct to be so serious as to warrant being fired.

He said his inappropriate conduct amounted to a “slip of the tongue” and was “an accidental outburst.”

The commission did note that Hengst’s comment, however inappropriate, was distinguishable from a comment that is designed and intended to hurt, abuse or threaten another person and the direct recipient of comment was not offended by the comment and expressly wished to take no action in respect of Hengst’s comment.

However, the commission ultimately denied his claim for unfair dismissal, stating that Hengst had failed to establish a sound foundation for trust and confidence on the part of his employer in his judgement in the future.