Journalist Sacked for Alleged Racist Slur Unfairly Dismissed

A radio journalist sacked for making alleged racist comments on air was unfairly dismissed, the Fair Work Commission has found.

Background

The Applicant, Mr Hand, had been employed by the Respondent, Campbelltown Radio Pty Ltd trading as C91.3FM Radio, from August 2013 until his dismissal on 5 July 2018.

He was dismissed over an incident that took place on 25 June 2018 during the afternoon radio program.  The Applicant was the newsreader for the program, which was hosted by Christian McEwan and Annabella Leone, when the following exchange took place:

 ‘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.’

The Applicant subsequently apologised on air for his comments, saying:

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.

The Applicant sent an email to station bosses apologising for the incident three days later in the following terms:

 ‘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’

A meeting was held with the Applicant on 2 July and he was given an opportunity to provide a written show cause response as well.

At a further meeting on 5 July, the Applicant was informed that his employment was being terminated.  He made the following comments to the Respondent’s Senior HR Advisor:

‘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.’

In dismissing the Applicant, the Respondent relied on the on-air comments of 25 June as well as his failure to promptly report the incident to management.

What the FWC found

The offending comments related to the reference to Michael Jackson’s father as a ‘big black bastard’ and the repeated use of the word ‘bastard’.

Senior Deputy President Hamberger of the Fair Work Commission was not satisfied that, viewed in its proper context, it was accurate to describe what the Applicant said as a ‘racial slur’, as the Respondent had argued.  The Senior Deputy President found:

 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.

His Honour went on to conclude:

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.

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

The Senior Deputy President further found that while the conduct of the Applicant did not amount to a valid reason for dismissal, it was nevertheless misconduct.  The Applicant should not have used the words he did and should have reported the incident more promptly.  The Senior Deputy President therefore reduced the amount of compensation payable to the Applicant by the amount of $15,000.  The Respondent was ordered to pay the Applicant $28,782 plus superannuation as compensation for his unfair dismissal.

Hand v Campbelltown Radio Pty Ltd T/A C91.3FM Radio [2019] FWC764