13 August 2020

By Hugh Powell, Senior Associate

When jokes and pranks take a turn for the worse

Larrikinism has long been associated with Australian society and culture. Who doesn’t love a good joke and the odd prank?

The world would surely be a dismal place if we could not laugh at ourselves or joke around every once and a while. But what happens when that behaviour takes a more sinister turn, and has real life consequences for those involved?

There have been a number of cases over recent years that have dealt with so-called “larrikins” in the workplace. In doing so, courts have made some attempt to draw a line in the sand about what is, or is not, appropriate. Some may describe this as political correctness gone mad, or that the fun police just don’t want you to have a good time.

When things turn sour

To give an example of how such jovial behaviour can easily turn sour, in March 2014, a worker suffered compression fractures to his spine when he fell backwards off a pallet jack at work. He was riding a pallet jack like a scooter when one of his co-workers kicked the pallet jack which caused him to fall and strike his head on the concrete floor.

The injured worker sued his employer for negligence and was successful, receiving damages of over $850,000.00. The reason why the claim was successful, and why that employer was held to be negligent despite the injured worker engaging in horseplay at the time he was injured, is because the employer was aware its workers engaged in that kind of horseplay and did nothing about it. The court held that the employer, with that knowledge, should have given a specific direction to its workers not to ride pallet jacks like scooters.

Not all jokes are funny

Earlier this year, the Fair Work Commission handed down a decision regarding a BHP employee who brought an unfair dismissal claim. BHP fired that employee after he made a crude sex joke in the presence of numerous female co-workers. Commissioner Hunt affirmed BHP’s decision to dismiss the worker. Seemingly not wanting to be misconstrued as a decision against all forms of jovial behaviour, Commissioner Hunt added that larrikinism and a sense of humour are still valued qualities so long as others are not seriously impacted:

“I consider there to be some tolerance in modern workplaces to joke-telling and to some degree, larrikinism. In my view, it would be sad to completely lose Australian larrikinism, including in the workplace, so long as it does not seriously adversely affect others. To remove larrikinism would mean workplaces would be devoid of nicknames, which are often given on account of a person’s attributes or perceived attribute, and where the nickname is welcomed by the person so named. Mr Boyle’s nickname is “yappy” on account of him, I understand, yapping or talking all of the time. He considers himself to be a bit of a larrikin.”

Horseplay gone wrong

More recently, in June 2020 the New South Wales District Court delivered a decision involving a worker who suffered a serious right ankle fracture when he fell to the ground after being bear hugged by his supervisor on a construction site.

The injured worker was employed by a labour hire agency and placed to work on the construction site. The injured worker in that case successfully sued his host employer and was awarded over $650,000.00.

The primary reason why that case was successful was because it was a supervisor who instigated the horseplay. As a result, the court held that the “bear hug” act was impliedly authorised by the host employer. Therefore, the host employer was vicariously liable for the negligence of the supervisor.

I am all for jokes and pranks at work, when and where appropriate, but you must always be mindful that they can easily go wrong, and people can be offended or hurt and the welfare of the people around you must always come first. At the end of the day, if an employer encourages that type of larrikinism in the workplace, then they must accept the inherent risks within that culture.

Cincovic v Blenner’s Transport Pty Ltd [2017] QSC 320
Kevin Boyle v BHP Coal Pty Ltd [2020] FWC 1080
Ajia v TJ & RF Fordham Pty Ltd trading as TRN Group [2020] NSWDC 371

Hugh Powell Travis Schultz & Partners

Hugh Powell

Senior Associate