When it comes to swearing in the workplace, context is key.
Employers cannot look at swearing in a vacuum. Instead, they need to consider all the circumstances and ensure they take a measured approach. While there may be no clear line, an employer should never act too hastily and must ensure employees are afforded procedural fairness in all circumstances.
A recent decision by the Fair Work Commission (FWC) in David Pauling v Roy Hill Operations Pty Ltd (in which Corrs represented the employer) highlights the importance of context.
In this case, an employee was fired after verbally abusing a nurse on a mine site. Amongst other things, the employee allegedly swore several times while disputing the nurse’s diagnosis that he suffered from anxiety rather than asthma. FWC Senior Deputy President O’Callaghan found that regardless of whether the employee had used the various expletives, his behaviour was (of its nature) threatening, aggressive and insulting. This was enough to justify dismissal of the employee.
As this case shows, determining whether dismissal is an appropriate response to swearing in the workplace can be a difficult task.
To help clarify what is and isn’t fair, we have put together the below ‘swearing spectrum’. In it, we examine six recent cases with outcomes of varying severity, and offer the key takeaways from each to assist employers who may find themselves faced with this difficult issue.
|1. Repeated use of profanities can lead to a dismissal being fair|
|In Horner v Kailis Bros Pty Ltd, the FWC found that an employee’s dismissal for repeatedly swearing at his supervisor was fair and reasonable. Mr Horner was described by his supervisor as engaging in a tirade of expletives which were directed at him.The FWC accepted that although swearing was commonplace in the workplace, the employee’s behaviour amounted to more than swearing. It was verbal abuse. Coupled with the fact that the employee had previously been put on notice that using inappropriate language to a supervisor was unacceptable, this led the Commission to find that there was a valid reason for termination of his employment.
Key takeaway: Prior warnings and repeated swearing at a person will give weight to an employer’s decision to dismiss an employee for swearing.
|2. Swearing like a wharfie|
|In Rikihana v Mermaid Marine Vessel Operations Pty Ltd, a wharf worker was dismissed for repeatedly using offensive language after he had received a final written warning from his employer for his behavioural issues.While it may be commonplace to swear at the docks, Commissioner Williams found that even wharfies can cross the line. The dock worker argued that his verbal abuse, (including calling his supervisor a ‘c*ck’ and a ‘d*ckhead’), should not be seen as a serious matter because there was a widespread culture of employees swearing at each other and at supervisors throughout the workplace.Williams C stated: “there is a generally appreciated distinction between regularly using swear words as part of everyday descriptive language and swearing aggressively and maliciously at another person.”2 The employee’s behaviour was ‘unjustified, extreme and unacceptable’ and ultimately the dismissal was fair.
Key takeaway: Even when swearing is part of a workplace’s culture, it does not excuse aggressive and malicious behaviour directed at another person.
|3. But it was just one mistake…|
|In Michael Treen v Adelaide Services Alliance T/A Allwater JV, a cleaner was dismissed after sending a text message to a colleague’s phone, in which he called him a ‘f**king scab’.The FWC found that while the ‘grossly inappropriate’ conduct was a valid reason for dismissal, when other relevant matters were considered, the dismissal was a disproportionate response.In this case, the conduct was a standalone event in the employee’s seven years of otherwise good conduct. The employer failed to take this factor into consideration along with the employee’s good service and work performance. Further, there was inconsistency in the way the employer dealt with this matter. Other employees investigated for similar misconduct were only given a final written warning. Ultimately, the FWC found that the termination was an inappropriate outcome and ordered reinstatement (although no compensatory order was made for lost wages).
Key takeaway: One isolated incident is unlikely to warrant dismissal.
|4. Money for the swear jar – but didn’t warrant dismissal|
|In Smith v Aussie Waste Management Pty Ltd, the FWC found that a truck driver required discipline for swearing at his managing director in a private phone conversation, but should not have been dismissed.In this case, Deputy President Wells made some useful comments about swearing in modern workplaces, as follows:
Wells DP ultimately found that: “whilst Mr Smith’s conduct should not be tolerated in the workplace, in the context of a one-on-one heated discussion with his Manager without anyone else present, I have concluded that the conduct is not sufficiently insubordinate to establish a valid reason for dismissal. The conduct did, however, warrant a form of disciplinary action, other than dismissal.”
Key takeaway: It is all about context, such as whether the conduct undermined a supervisor’s authority in front of other employees and what the workplace culture is like.
|5. Even if someone swears, procedural fairness must still be afforded|
|In Hain v Ace Recycling Pty Ltd, the FWC found that an employee who called his boss an obscene term was unfairly dismissed, because he was denied procedural fairness.The employee was asked to work overtime, but refused to because his employer had failed to pay him for overtime he had previously worked. During a heated conversation, both the employee and his boss hurled a variety of profanities at one another. The call ended with the employee saying ‘that’s not my f**king problem you owe me money you old c**t.’ Later that day, the employee was dismissed by a text message saying: ‘do not come back tomorrow.’Whilst the FWC considered that the employee’s conduct was ‘rude’, ‘disrespectful’, ‘unjustified’ and would ordinarily warrant dismissal, it held that the dismissal was unfair because the employee was dismissed by a text message and the employer failed to accord him procedural fairness.The employer also ignored opportunities to respond to the unfair dismissal claim, and it was observed (in respect of the argument between employee and managing director) that ‘it takes two to tango’.
Key takeaway: Keep a level head and be fair. In this case, Asbury DP stated that the employee’s profane comment indicated a breakdown in the employment relationship, and that, notwithstanding other factors: “… an employer will generally have a valid reason to dismiss an employee who directs such a comment to the CEO or a manager or to another employee.” However, procedural fairness requirements must still be followed.
|6. Consider all the circumstances of the matter before making the decision to dismiss|
|In Kazmar v Medalist (Test-Rite), a manager was showing an employee with cerebral palsy how to complete a task that he had earlier failed to complete to the desired standard. In frustration, the employee told the manager to ‘shove his roster up his arse.’ The employer dismissed the employee on the basis that he had previously been warned about his temper and outbursts. The FWC found that the employee’s comments did not constitute a valid reason for dismissal, noting the comment was a product of the employee’s frustration and was not made in anger or with aggression. Further, the employer did not sufficiently take the employee’s disability into account when dismissing him. Finally, the Commission noted that far worse things have been said in workplaces, which did not lead to dismissal. The employer also failed to provide the employee procedural fairness for a variety of reasons.
Key takeaway: Make sure you consider any specific factors relating to the ‘offending’ employee and all the circumstances of the matter before proceeding to the – possibly extreme – step of dismissal.
About Simon Billing:
Simon has provided Australia’s leading companies with strategic commercial advice on occupational health and safety, workplace relations and employment law for more than 20 years.
He has a particular focus on issues affecting the mining, energy and engineering industries, having been a senior adviser for the Australian Mines and Metals Association and representative of mining companies in Western Australia, New South Wales and Victoria. He is Partner at Corrs Chambers Westgarth.