Ms Bastoni was employed by ORC International Pty Ltd as a casual market research interviewer for more than 8 years before her employment was terminated after an incident on 26 May 2018 in which she referred to her supervisor as having “extra padding”.

The comment followed Ms Bastoni’s request to her supervisor for the heater in the phone room to be turned on. The supervisor rejected the request, commenting that she was not cold. In response, Ms Bastoni replied that this was because the supervisor had “extra padding”.

The supervisor reported feeling anxious, upset and humiliated by Ms Bastoni’s comments, especially given other employees were nearby at the time. After much consideration by ORC management, the supervisor was instructed to provide Ms Bastoni with a warning for breaching ORC policies and guidelines and to inform her that if she continued with such behaviour she would be sent home.

After receiving the warning, in a further lapse of judgement Ms Bastoni approached the supervisor telling her that she had not made a personal attack, that it was a fact that people with extra weight/padding do not feel the cold and lastly requesting that the supervisor not report her as she had already received two warnings.

The supervisor made a formal complaint about Ms Bastoni’s behaviour and at the same time raised a Facebook message she had received from Ms Bastoni on 7 April 2018 after the supervisor sent her home for breaching ORC’s mobile phone policy. In the Facebook message Ms Bastoni expressed her disdain for ORC’s mobile phone rules whilst also criticising the supervisor’s actions, making comments including “…if keeping your job means I have to lose mine it is a sad state of affairs…I find the rule demeaning and childish. I know you are a stickler for the rules but I wonder if they pay you enough to feel good about undercutting me?”.

Ultimately, Ms Bastoni’s employment was terminated by ORC on 1 June 2018 on the basis that the 7 April 2018 message and 26 May 2018 incident were serious breaches of ORC’s policies and procedures in relation to bullying and harassment.

A short time later, Ms Bastoni filed an unfair dismissal claim in the Fair Work Commission.

Ms Bastoni did not deny making comments to the supervisor on 26 May 2018 or sending the Facebook message on 7 April 2018, but argued that they did not constitute a valid reason for dismissal. Ms Bastoni alleged that neither the Facebook message on 7 April 2018 or the comments on 26 May 2018 were breaches of ORC’s bullying and harassment policy.

Ms Bastoni asserted she was trying to make an argument to get the heater turned on and that it is a scientific fact that people with more body fat do not feel the cold as much as skinnier people. She said the comments were not personal, that she did not intend to hurt the supervisor’s feelings and she thought the supervisor would see the humour in her comments and did not intend to shame her.

Unfortunately for Ms Bastoni, Deputy President Clancy found her submissions “… neither impressive nor persuasive.” Deputy President Clancy rejected the argument that: provided one bases an insult on scientific/biological factors, it is justified.

Deputy President Clancy found that the comments towards the supervisor on 26 May 2018 were a valid reason for dismissal.

Deputy President Clancy also found that the Facebook message was employment related conduct given it was communication from an employee to a manager, arising out of a workplace incident and took issue with the manager’s actions in seeking to enforce ORC’s policies.

In handing down his decision Deputy President Clancy provided a stark reminder for all employees to act in a respectful and courteous manner towards co-workers, stating that “Ms Bastoni has an obligation to treat her fellow worker with basic dignity, courtesy and respect regardless of whether it was written in a policy document which she had signed and her indifference to such an obligation was callous. Ms Bastoni may have taken issue with some of ORC’s policies but this did not grant her carte blanche to say what she liked to whomever she pleased.”

 For further information or advice please contact:

Jim Rutherford
Principal
T + 03 5226 8579
E: jrutherford@ha.legal

or

Sonia McCabe
Senior Associate
T 03 5226 8558
E: smccabe@ha.legal

or 

Sophie Ware
Associate
T 03 5226 8577
E: sware@ha.legal