Offensive radio banter not grounds for dismissal

22 March 2019

A senior radio journalist sacked for referring to the late singer Michael Jackson's father as a 'big black bastard' live on air has been awarded a significant amount of compensation for being unfairly dismissed from Sydney radio station C91.3FM.

In issue

  • Whether the employee journalist was unfairly dismissed.

The background

A radio journalist for Sydney radio station C91.3FM made what were very unfortunate comments during a 'banter session' with two other presenters over news that Michael Jackson’s father had been hospitalised. During the banter session the journalist described Michael Jackson’s father as being a 'great big black bastard'. The journalist then sought to clarify his comments by reference to the way that Michael Jackson’s father had treated his kids, namely poorly. A short time later after realising that his comments were inappropriate he sought to apologise and attempted to justify his comments.

After being summarily dismissed a short time later, the journalist brought an action for unfair dismissal in the Fair Work Commission.

The issues

The issue at the hearing was whether in all circumstances the journalist’s conduct constituted a valid reason for his dismissal.

The hearing

Evidence was tendered before Senior Deputy President Hamberger who concluded that, inter alia:

'The term black bastard is deeply objectionable because it implies either that the person in question is reprehensible because of 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 journalist was not using the phrase in this way at all'.

The Court indicated that what the journalist was trying to point out was to differentiate Michael Jackson’s father from another American with the same name and no racist slur was intended. It was clear to the Commission that as soon as the journalist made the comments he realised that he had made a mistake and tried to correct himself and then apologise.

In conclusion the Deputy President was not satisfied that the conduct constituted a valid reason for summary dismissal in all the circumstances as the offending words were used by mistake, the journalist realised his error and apologised on air and reported the incident to management. He also demonstrated that he was extremely remorseful and understood that an error had been made.

The journalist was awarded $28,782.00 plus super.

Implications for you

It is clear that the Fair Work Commission will take into account all relevant circumstances in considering whether a summary dismissal was appropriate. Whilst the comments of the journalist were clearly deeply objectionable and ought not to have been made, an employer who seeks to rely on summary dismissal provisions must consider all the circumstances carefully before deciding to dismiss an employee.

Peter Hand v Campbelltown Radio Pty Ltd TA C91.3FM Radio [2019] FWC 764

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