The safety dimension

There is a newer layer that did not exist in its current form when this dispute began. Work health and safety regulators across Australia now treat psychosocial hazards, including racism, bullying and harassment, as hazards employers must proactively manage under workplace laws, in the same way they manage a trench collapse risk or a live circuit.

Safe Work Australia’s model code of practice on psychosocial hazards makes the duty concrete: identify harmful behaviours, assess the risk, implement controls and review them. A business that waits for a complaint before acting has already breached the duty, because the duty is preventative. Racist conduct between workers is not just a discrimination exposure anymore. It is a safety incident, and safety regulators carry enforcement powers that discrimination commissions do not.

What different businesses should take from this

A trades operator running crews, apprentices and subcontractors carries every exposure this case illustrates, usually with no HR department to manage it. The checklist is short and achievable.

• Put a code of conduct in writing that expressly covers racist and discriminatory behaviour, on site and online, during and outside work hours.
• Adopt a social media policy that captures personal accounts where conduct connects to the business or to workmates.
• Deliver toolbox training on the policies and keep attendance records. Training records are the backbone of the all reasonable steps defence.
• Respond to every incident the first time, proportionately and in writing. Consistency is the whole game.
• Treat racist behaviour as a psychosocial hazard in your safety system, not only as an HR matter.

The same framework carries across the economy, but each sector wears it differently.

Manufacturing operators face the exposure at scale. Shift-based workforces are often highly culturally diverse, supervisors hold real power on the floor, and conduct problems travel fast through cross-shift group chats. Safety regulators already visit these sites for physical hazards. Psychosocial hazards, including racism between workers, now sit on the same inspection list, so the conduct system needs the same rigour as the guarding on the machines.

Child care and early learning services carry the highest scrutiny of all. Educators work under the National Quality Framework, Child Safe Standards and Blue Card requirements, and families extend trust on the assumption that every adult in the room meets them. A discriminatory public post by an educator is not only a workplace law problem. It threatens regulatory standing, enrolments and the confidence of every family at the door, which is why conduct policies in this sector must expressly reach personal social media.

Allied health and NDIS providers answer to two regimes at once. Workplace laws govern them as employers, while the NDIS Code of Conduct and AHPRA professional standards govern practitioners individually. A racist post by a clinician can produce an employment matter, a registration notification and a Commission complaint from the same set of facts. Screening, induction and conduct training need to close all three doors together.

Professional services firms trade entirely on judgement, so a principal’s public conduct is the brand. Client agreements increasingly include conduct and reputation termination clauses, and professional bodies run their own disciplinary tracks beside employment law. In this sector, the partner-level social media policy matters as much as the staff one, because seniority multiplies the damage rather than excusing it.

Not-for-profits hold the framework with the least room for error. Funding agreements routinely require compliant conduct frameworks, ACNC governance standards demand them, and volunteers count as workplace participants under discrimination and safety law even though they are not employees. A conduct failure that a commercial business survives can end a program, a grant and a board’s standing in one stroke, so the policies must name volunteers explicitly.

Frequently Asked Questions

Could an employee really be dismissed for a post like the one in this case?

In many circumstances, yes. The Fair Work Commission has upheld dismissals for offensive out-of-hours social media posts where the conduct damages the employment relationship or the business. A public racist post directed at a colleague has a strong connection to employment. Workplace laws still require the employer to run a procedurally fair process before acting.

Is my business liable if a worker racially abuses a colleague online?

It can be. Section 18E of the Racial Discrimination Act makes employers vicariously liable for employee conduct done in connection with their duties, unless the employer took all reasonable steps to prevent it. Similar provisions exist in other discrimination legislation. Liability can attach even if you knew nothing about the conduct.

What counts as all reasonable steps?

Courts assess it case by case against the size of the business, but the consistent core is: current written policies, genuine training with records, an accessible complaints process, and enforcement applied consistently. A policy sitting unread in a drawer does not count.

Do these obligations cover subcontractors on my site?

Largely, yes. Work health and safety duties extend to all workers you engage or influence, including subcontractors, and discrimination law protects workplace participants beyond direct employees. If they work under your direction on your site, plan on the basis that workplace laws make their conduct and their safety your concern.

Where SBAAS fits

SBAAS writes codes of conduct, social media policies and complaint-handling procedures that stand up to the scrutiny workplace laws apply, for trades businesses, allied health and NDIS providers, professional services firms and not-for-profits. If your policy set has not been reviewed since these obligations tightened, that is worth fixing now, calmly, rather than later, expensively. Book a conversation with our team, or learn more about who we are and how we work at https://sbaas.com.au/about-us/.