Mr Claus-Dieter Hengst has failed in his claim for unfair dismissal. Mr Hengst was a Disability Support Worker and Workplace Health and Safety Advisor for Town & Country Community Options. The employer provides services on a not-for-profit basis to urban and rural communities for people with disabilities such as Down syndrome, cerebral palsy and intellectual disabilities. Mr Hengst had performed his duties (without formal incident) for 18 years, having commenced employment in 1997. On 22 September 2015, Mr Hengst explained that he was interviewing a co-worker, Mr Terry Mears, in relation to an OHS issue. In the course of the meeting, Mr Hengst and Mr Mears discussed an incident which occurred earlier that morning in which Mr Mears had struck a kangaroo in his vehicle. During the closing conversation Mr Hengst enquired of Mr Mears if he required any counselling over the incident. Mr Mears replied, “No”. Mr Mears then added in a jocular manner: “I wasn’t overly concerned for the kangaroo and it’s not like I knew him personally.” With that light-hearted tone allegedly established, Mr Hengst went on to state – in what he seemingly considered to be a jocular fashion in the immediate context: “So you’re ok then? You’re not going to lose the plot and go home and rape your daughter or anything like that?” Mr Mears was said to have laughingly responded to the suggestion made to him by Mr Hengst . The comment and the resulting laughter were overheard by another member of the employer’s staff, Ms Elizabeth Fazakerley. Ms Fazakerley worked in the same office with Mr Hengst and was seated some 2 metres from Mr Hengst . Ms Fazakerley claimed that upon hearing the comment by Mr Hengst she “sharply recoiled” and said: “Claus! That is not appropriate!” When pressed under cross examination, Mr Hengst had no recollection as to whether Ms Fazakerley had so interjected. Ms Fazakerley claimed further that Mr Hengst had “caught her eye” before making the comment in question and had then turned to see her reaction as he said it. Mr Hengst denied having done so.
