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FWC finds DJ’s alleged racist slur was misconstrued

By Portner Press on February 20th, 2019
  1. Termination of Employment
  2. Unfair Dismissal

 

A radio journalist who was sacked for saying “black bastard” on air during a radio program was unfairly dismissed, the Fair Work Commission (FWC) has found.

Peter Hand made the comment on Sydney radio station C91.3FM when discussing news of Michael Jackson’s father’s hospitalisation with two other presenters, Christian McEwan and Annabella Leone.

The following exchange took place between the presenters:

“ANNABELLA LEONE: Joe Jackson, which is Michael Jackson’s dad, the Jacksons’ dad, he was hospitalised over the weekend. Did you see this?

CHRISTIAN McEWAN: Yeah, apparently he was – he was a terrible man, from what I’ve heard.

ANNABELLA LEONE: Was he?

CHRISTIAN 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?

ANNABELLA LEONE: No, I think it’s the dad. That’s why they’re saying –

CHRISTIAN McEWAN: I think his name is Joe Jackson as well! Is it the same person?

ANNABELLA LEONE: No.

CHRISTIAN McEWAN: Illuminati confirmed!

ANNABELLA LEONE: [laughs]

PETER HAND: Joe Jackson is a pale little… fellow,

CHRISTIAN McEWAN: OK –

ANNABELLA LEONE: Yes?

PETER HAND: And Jackson, the father of Michael, is a great big black bastard.

CHRISTIAN McEWAN: But they’re both called Joe. Right?

PETER HAND: 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…

ANNABELLA LEONE: That’s what I’ve heard.

PETER HAND: That’s what caused Michael’s problems.

CHRISTIAN McEWAN: Annabelle’s face…

PETER HAND: The other Joe Jackson will never have babies, if you know what I mean.

CHRISTIAN McEWAN: Yes.

ANNABELLA LEONE: Ah.

CHRISTIAN 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.

ANNABELLA LEONE: I get where you are coming from Pete.

CHRISTIAN McEWAN: It’s well recorded that he was a terrible, terrible person.

ANNABELLA LEONE: Yes.

PETER HAND: Yes I didn’t mean that he was ah…

CHRISTIAN McEWAN: Of course, he was a terrible, terrible person, beatings … anyway.

PETER HAND: Bastard he was.”

The FWC found that after Mr Hand had made the comment, he was immediately aware that he had made an error. In the hearing, Mr McEwan said he looked “very upset” and “shocked”.

Almost immediately afterwards, Mr Hand apologised on air for the blunder:

PETER HAND: 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.

CHRISTIAN McEWAN: I don’t think you need to mate, don’t you worry about it. It’s fine.

ANNABELLA LEONE: It’s all right, mate. It’s all good. It’s all good.

CHRISTIAN McEWAN: And you know, no one listens to you anyways.

ANNABELLA LEONE: [laughing]

PETER HAND: Ok, I take it all back.

CHRISTIAN McEWAN: He’s gonna throw it down now. Anyway he’s done now, thank you and thank you for your apology. You didn’t need to. I don’t think you needed to but, you know, he’s a big man.

ANNABELLA LEONE: No, that was very big of you.

PETER HAND: I apologise for apologising.”

The radio station dismissed Mr Hand for misconduct about two weeks later.

In the unfair dismissal hearing, FWC Senior Deputy President Jonathan Hamberger said “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 … [Mr Hand] was not using the phrase in this way at all”.

“Nevertheless, it is inappropriate for phrases such as ‘black bastard’ to be used on the radio (or anywhere else) in any circumstances, because they could be seen as racially derogatory, even though the phrase was not intended to be so in this case.

“It is clear that as soon as the offending words fell from the [Mr Hand’s] mouth, he realised he had made a mistake and immediately tried to correct himself.

“In summary, [Mr Hand] 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).

“[Mr Hand] 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 [Mr Hand’s] conduct constituted a valid reason for his dismissal.”

Senior Deputy President Hamberger ordered that the radio station pay Mr Hand – who did not seek reinstatement – $28,782, plus superannuation.

Employers must be very careful when managing any type of apparent misconduct

Especially if the misconduct is seen as serious enough to warrant summary dismissal.

Don’t make procedural errors that can result in a costly legal claim.

Written by prominent employment lawyer, Charles Power, Managing Misconduct shows you how to effectively manage employee misconduct while avoiding legal risks.

Learn more.

 





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