Workplace banter is often a key part of a fun and comfortable company environment. The ability to joke and have fun at work is what often creates a family environment where people feel like they can be themselves.
Obviously, there are limits to this. There are contextual factors constantly at play that govern whether the jokes are appropriate or not. What may be appropriate in one setting may be completely off limits in another. There are also some comments that, regardless of the context or the circumstances, are offensive and inappropriate.
Human Rights Review Tribunal
A recent decision from the Human Rights Review Tribunal highlighted this very issue, shining light on remarks that were said in jest but were actually hurtful, dismissive and discriminatory.
This case involved a top horse trainer, Mr McKee (respondent) and his stable hand, Mr Singh (applicant).
Singh claimed he was subjected to humiliating and racially motivated comments leaving him anxious about when the next hurtful remark would come.
These remarks include being sworn at for speaking Hindi (Singh’s native language), mocked for his accent and about the low wages in India. McKee even told the other man, “it wouldn’t matter if an Indian died, there would still be a billion left” after Singh was nearly kicked by a horse. These comments started small and infrequent but continued to the until the point that Mr Singh could no longer handle.
McKee argued that these remarks were said in jest and in a group context. He claimed they were not racially motivated and that he had no issues with the culture or work ethic of Mr Singh.
McKee also highlighted the importance of speaking English on site for the safety purposes and that that was why he swore at his Indian staff members to speak English.
The Tribunal found that McKee’s language showed a “disregard and disrespect to Mr Singh on the grounds of his race, ethnic and national origin as they infer his native language (a fundamental part of his ethnic identity) is inferior to English and is somehow inherently objectionable.”
Singh was awarded $10,000 in damages by the tribunal for humiliation, loss of dignity and injury to feelings.
Takeaways
As an employer it is easy to dismiss borderline jokes or comments as friendly banter, but this case demonstrates that if unchecked, these comments can and often do, cause real, lasting damage.
This case is also a reminder to call out inappropriate behavior as soon as you see or experience it. It was not one isolated comment that caused the damage in this case, but rather the repetitive, small instances that compounded over time.
If you see workplace harassment or even banter that is going over the line of what you are comfortable with – speak up about it. As discussed in one of our previous articles, workplace harassment is a serious issue especially when on the grounds of race and sex. The key to combatting it is speaking up when it first arises.
If you have any questions about what is and isn’t workplace harassment, or you have experienced banter that you are uncomfortable about, get in touch with the team here at Watermark Employment Law, we would love to assist you in navigating this matter.
09 532 8211