Temperature regulation in the office can be a source of frustration for employees, with it being near impossible for the thermostat to maintain a temperature that suits everyone.

It is important that employees feel comfortable at work, in addition to being able to raise concerns about regulating temperature in the workplace. However, a recent decision of Deputy President Clancy of the Fair Work Commission has provided an example of how not to approach the temperature regulation discussion with a supervisor.

‘Natural Extra Padding’

During a shift in May 2018, the Applicant requested that the Supervisor turn on the office heating. The Supervisor said that she did not feel cold and refused the Applicant’s request to which the Applicant responded that the Supervisor did not feel the cold as she had ‘natural extra padding’, referring to the Supervisor’s weight. Later, when apologising, the Applicant said to her Supervisor that ‘it is basic science… skinny people experience the cold more than overweight people’.

The Supervisor made a formal complaint about the Applicant’s weight related comments in addition to an inappropriate message previously sent to her by the Applicant through the Facebook Messenger app.

As a result of the Applicant admitting all the allegations against her, the Respondent was not required to undertake an extensive investigation into the conduct and terminated the Applicant’s employment.

Background

The Applicant was employed by the Respondent for over eight years prior to her dismissal. In the six months preceding her dismissal the Applicant had received two written warnings and numerous informal warnings for breaching various Company policies, including:

• using a mobile phone during work hours;

• eating at her desk during her shift; and

• consistently questioning and undermining supervisors’ authority when given directions to cease the inappropriate behaviour.

The Applicant was aware from the written warnings that that any further policy breaches or inappropriate conduct could warrant her immediate dismissal.

The Applicant made an unfair dismissal application to the Fair Work Commission.  She sought compensation in lieu of reinstatement.   The Applicant claimed that while her comments may have lacked tact, she had not intended to insult her supervisor as the language she used was euphemistic rather than demeaning. 

Fair Work Commission decision

DP Clancy was unmoved by the Applicant’s justification for her conduct, labelling the behaviour as ‘completely disrespectful and unacceptable’. In concluding that the Applicant was not unfairly dismissed, DP Clancy considered that the ‘cruel, insulting and demeaning’ comments about the Supervisor’s weight was not an isolated incident and instead formed part of a pattern of increasingly belligerent and disruptive behaviour’.

DP Clancy also held that euphemistic language does not assist, as it simply substitutes vague language for what would otherwise be harsh or blunt.

Ultimately DP Clancy concluded that the Applicant’s dismissal was not a disproportionate response to the increasingly inappropriate conduct the Applicant was displaying. In reaching this conclusion, DP Clancy referred to the objectives of the Respondent’s Workplace Harassment & Bullying Policy, which aims to create a workplace environment free from discrimination and harassment requiring a minimum standard of behaviour from all employees to ensure that everyone is treated with dignity, courtesy and respect.

DP Clancy also held that in itself, the ‘extra padding’ comments constituted a valid reason for dismissal.

While this matter did not trigger anti-discrimination legislation, it is important to be aware that the Equal Opportunity Act 2010 (Vic) (Act) prohibits discrimination on the basis of physical features, which includes a person’s height, weight, size and other bodily characteristics.

Broader Issues

The approach taken by DP Clancy can be contrasted to several Commission decisions where an employee has been found to be unfairly dismissed after using foul language.  DP Clancy’s decision suggests that an insult (i.e. about someone’s weight or appearance) will be treated more seriously than foul language. 

Separately, WorkSafe Victoria has included a section on ‘Thermal Comfort and Air Quality in the Office’ in a workplace health and safety publication.

To discuss this further or for more information please contact:

Jasmine O'Brien
Principal
Sladen Legal
T +61 3 9611 0149  l M +61 401 926 108
Level 5, 707 Collins Street, Melbourne, 3008, Victoria, Australia
E: jobrien@sladen.com.au