Swastika not race hate: appeals board
A MAN who was sacked for allegedly vilifying Jews by etching a swastika onto a freezer door will receive $4800 after an appeal upheld he was unfairly dismissed.
A MAN who was sacked for allegedly vilifying Jews by etching a swastika onto a freezer door will receive $4800 after an appeal upheld he was unfairly dismissed.
Fair Work Australia upheld the original ruling by commissioner Ian Cambridge that Stephen O’Loughlin’s act did not constitute racial vilification because the Nazis, symbolised by the swastika, had targeted many diverse groups.
Australian Personal Solutions (APS) let O’Loughlin go in February last year because company representatives believed his actions, which also included writing “welcome to hell” on the freezer, entailed racial vilification.
O’Loughlin challenged the decision and FWA ruled he had been unfairly dismissed. An appeal by APS this week failed.
“We do not think that we can proceed on the basis of the submission of counsel for the appellate that Jewish people were the sole victims of the Nazi concentration camps such that the only reason a person could draw a swastika for the purpose of evoking a connection with the ‘hell’ of the concentration camps was because of the Jewish ethnicity of their victims,” the appeals board said.
“… While Jewish people were the pre-eminent category of victim subjected to the hellish conditions of the concentration camps (and without in any way seeking to downplay the unspeakable enormity of the Holocaust), non-Jewish victims of the Nazi concentration camps (Soviet prisoners of war, non-Jewish ethnic Poles, gypsies, disabled people, homosexuals, freemasons etc) number in the many millions.”
The board said it accepted O’Loughlin’s statement that he drew the swastika to draw a comparison between concentration camps and his workplace.
An industrial relations consultant for APS said it was impossible to discharge the expectations of FWA in relation to fair dismissal.
“It highlights the contradictions between employers’ responsibilities under anti-discrimination legislation to guarantee and safeguard a workplace free of harassment, bullying, discrimination and harassment when apparently the workplace conduct of such a person as O’Loughlin is deemed to be not deserving of dismissal,” he said.
JOSHUA LEVI
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