A WAREHOUSE worker who etched a swastika and "WELCOME TO HELL" into the ice on a freezer room door will receive a $4800 pay-out after Fair Work Australia upheld a decision that he was unfairly dismissed.

Stephen O'Loughlin had been sacked by labour hire company APS Group (Placements) after the etchings were seen by other employees and captured by CCTV in February 2010. Mr O'Loughlin was placed, through APS, at a Sydney warehouse of VersaCold and at first denied making the etchings. Later he defended them as a jovial way to criticise the very harsh working conditions in the warehouse.

"Our fingers froze up. Our toes used to froze up. I thought it was quite a dangerous environment to work in. It was just an indication to me and another workmate that this was working in hell."

But APS, who had senior staff members who were Jewish, dismissed him for serious misconduct for "discrimination on the grounds of racial vilification". Last September the tribunal ruled the sacking was "harsh and unreasonable" and that while the worker, either through ignorance or stupidity, had "failed to appreciate" the offence the swastika creates it ruled he had not engaged in racial vilification.

The tribunal, however, did not give Mr O'Loughlin his job back saying his "abrasive and insensitive" conduct had "created impediment to the re-establishment of any employment relationship".

During the initial Fair Work case Mr O'Loughlin's views were summarised by the tribunal as "get over it, the war finished 70 years ago."

The employer appealed that decision but the full bench of Fair Work Australia, earlier this month, refused to grant an appeal. The majority decision noted the inconsistent approach taken by the employer on offensive images and etchings.

Another employee had drawn lewd sexual images and according to unchallenged evidence by Mr O'Loughlin this was "just laughed about" by management. "In circumstances where etchings of that sort had not attracted a disciplinary response, the etching made by the employee involved misconduct that ought be viewed as relatively minor," the majority decision said.