Worker fired over racist comments was unfairly dismissed

A worker whose colleagues complained after he got drunk at a company barbecue and cracked racist jokes about skin colour will get nothing despite a ruling that he was unfairly sacked.

The Workplace Relations Commission (WRC) has upheld a complaint under the Unfair Dismissals Act 1977 by general operative Lucian Mihai Muscalu against Gunn Lennon Fabrications Ltd – but found it was “just and equitable” to award him nothing because of the “offensive” comments.

The incident happened at a lunchtime work barbecue thrown by the engineering firm for its staff in June 2021, when Covid-19 public health measures had just been reduced to allow outdoor social events, the employment tribunal was told.

Mr Muscalu recalled drinking “four whiskeys and three beers” at the event and told the WRC he had been “intoxicated”. “Some people are like snowflakes; they get offended by anything you do or say,” Mr Muscalu told a hearing of the employment tribunal last November where he repeated a number of his comments.

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“Everyone laughed and there was no issue,” he told the WRC.

Staff at the event were restricted to “bubbles” – with Mr Muscalu making his comments to “a group of multinational colleagues, including one from Jamaica”, the company’s barrister, Jason Murray appearing instructed by Reddy Charlton Solicitors, said.

“The complainant admits on his complaint form that he made openly racist comments,” Mr Murray said.

Counsel submitted that one of the colleagues in the barbecue bubble later told the company the complainant continued to make “homophobic” comments “talking about rainbow people”.

At that point the other worker told Mr Muscalu: “That type of talk [is] not acceptable,” Mr Murray said.

A second colleague made a formal verbal complaint to the company’s production manager, who took the matter up with the complainant.

At a meeting with the production manager and the firm’s operations director the week after the barbecue, Mr Muscalu admitted making “a joke about a panda being racist” but said it was not directed at his colleague and he “did not mean for this to offend anyone”.

The complainant was informed of his dismissal by letter that same day and was escorted off the company’s premises with his belongings.

Mr Muscalu’s representative, Marius Marosan, said the firm should have taken into account the fact that his client was “intoxicated” at the time, had a good work record and had apologised “immediately”.

Mr Marosan said Gunn Lennon had “failed to comply with fair procedures and natural justice” as his client “was not informed about a complaint against him and did not have an opportunity to reply”.

“The complainant had admitted making racist comments in the workplace,” Mr Murray said, arguing the employer had acted reasonably in the affair and that the tribunal would have to consider the complainant’s contribution to the dismissal.

WRC adjudicator Davnet O’Driscoll wrote in her decision that the dismissal had been “unfair on procedural grounds” but that Mr Muscalu had “undoubtedly significantly contributed to his dismissal with his offensive comments”.

The complainant had sought compensation for a financial loss of €375.40, but Ms O’Carroll said it would be “just and equitable” to make no award at all.