Mining giant BHP has been told to reinstate a truck driver sacked for inciting anti-Muslim views, with Australia's workplace tribunal deeming his remarks less offensive because they were not directed at anyone in particular.
A majority of the Fair Work Commission's full bench has backed a ruling that a BHP Billiton subsidiary acted too harshly in sacking the employee for making lewd, sexist and bigoted comments at work, including saying Muslims have had "1400 years of bloody inbreeding, so they gotta be f---d up".
The decision on Friday has stirred controversy, with one Fair Work commissioner saying it "beggars belief" that inciting derogatory views about a race or religion could be in the "mid-range of seriousness".
"Making jokes or comments that are inherently Islamophobic and homophobic is likely to negatively affect the mental health of people in the workplace ranging from anxiety to depression," Commissioner Leigh Johns said.
The BHP truck driver was sacked earlier this year for making comments on a staff radio channel that could be heard by up to 100 colleagues on the Hunter Valley mine site.
The truck driver made a string of anti-Muslim comments, and agreed with a co-worker who said the government should hire professional hit men to "cull dirtbag Australians" and "people who don't deserve to be in this country". He also made homophobic comments.
He defended his actions as "banter" to combat fatigue during a gruelling 12-hour shift. He also claimed he was was not aware of any Muslims employed at the mine and, if a Muslim had been employed on his crew, he would not have discussed his views on the open radio channel.
But the company conducted an eight-week investigation and sacked him for inappropriate behaviour and violating company policy.
In an earlier unfair dismissal case, a Fair Work commissioner ruled that the remarks "incited derogatory views" of people of a particular race or religion, but that they were in the "mid-range of seriousness" because they were not directed to a Muslim co-worker.
The ruling said that while the radio comments "expressed and incited derogatory views of people of a particular race/religion" and could have been heard by up to 100 people, they were in the mid-range of seriousness because they were not directed at any particular person.
BHP Billiton appealed that decision, saying that the conduct constituted "incitement" or bigoted, anti-Muslim views, and must be inherently deemed highly serious.
But Fair Work vice-president Adam Hatcher and deputy president Nicole Wells on Friday rejected the company's argument and concluded that it was reasonable to consider that personally directing anti-Muslim remarks was more serious.
"It is reasonable to conclude, for example, that for an employee to personally direct anti-Muslim comments at a fellow employee who is known to be of the Islamic faith is objectively more serious than the expression of anti-Muslim opinions to fellow employees who are known to hold similar views," they said.
Commissioner Johns disagreed, saying that while the miner was entitled to his bigoted views, he was not entitled to broadcast them in the workplace.
He said the fact that the worker was driven by prejudice should have been an aggravating factor, and that reinstating him was "plainly unjust".
"Mount Arthur [the BHP subsidiary] took decisive action to eliminate Islamophobia and homophobia in its workplace. It should have been commended for its action, not punished by being required to take [the miner] back."