The kind of behaviour considered appropriate in the workplace has evolved over the years.
Whether an employee can have their employment terminated for swearing depends on a few things: the context in which the swearing occurs, the audience, and whether it was part of the workplace culture.
Serious Misconduct
An employer can instantly dismiss an employee for serious misconduct. Serious misconduct is defined as conduct that causes a serious and imminent risk to the health and safety of a person, or the reputation, viability or profitability of the employer’s business.
The following behaviour is deemed serious misconduct:
– Theft
– Fraud
– Assault
– Intoxication at work
– Refusing to carry out lawful and reasonable instructions consistent with the employees contract of employment.
When can an employee be terminated for swearing?
Swearing does not expressly appear in the definition of serious misconduct. Therefore, it is generally not something that an employer may instantly dismiss an employee for. However, there have been cases where employees have been fired for swearing. What are the circumstances in which an employee may legitimately be dismissed for swearing?
In Mr Roderick Macdougall v SCT Pty Ltd T/A Sydney City Toyota [2013] FWC 1077 Mr Macdougall brought a claim for unfair dismissal after he was summarily dismissed for swearing at a customer. He acted in an aggressive manner toward the customer and said ‘Well I guess that means that you wasted my f…g time’. Mr Macdougall said that he did not swear at the customer personally, but witnesses to the event confirmed otherwise, and also confirmed that he was very aggressive.
The Fair Work Commission decided that his dismissal was not unfair as customer service was a central part of Mr Macdougall’s job, and his actions had posed a risk to the reputation and profitability to the business. It was for this reason that the swearing was considered more serious. If it had of occurred in a private conversation between the employee and a senior employer the dismissal probably would have been unfair. The dismissal was also not unfair as Mr Macdougall was informed of the allegation of swearing and had an opportunity to respond to them.
In Symes v Linfox Armagaurd Pty Ltd [2012] FWA 4789 Mr Symes was summarily dismissed after he swore at a supervisor. My Symes told his Supervisor to ‘Get f…d’ when he was asked to return to a meeting, and then complained about his ‘f…g roster’. He also pushed his finger against the roster board which resulted in a finger injury, and the roster board falling to the floor.
Linfox had a no swearing in the workplace policy. However, it was claimed that this policy was not really enforced, and that swearing occurred frequently in the workplace. A disciplinary meeting was held and then Mr Symes employment was terminated. He made a claim for unfair dismissal.
The Commissioner found that Mr Symes swearing was inappropriate, but was not an adequate reason for dismissal. His dismissal was found to be unfair as:
– Swearing was common in the workplace , and no disciplinary action had been taken for swearing in the past.
– There was no evidence Mr Symes had been physically violent. There was no threat to his supervisor, and pushing the board with his finger did not constitute violence.
– Also it was not fair that his supervisor had been part of the investigative and disciplinary process.
Mr Symes was reinstated to his position and paid compensation for the time he was out of work.
In Smith v Aussie Waste Management Pty Ltd [2015] a truck driver was summarily dismissed for swearing at the Managing Director. The Managing Director confronted the employee about being slower than usual on his round. The employee called the Managing Director and a heated exchange took place in which the employee said that ‘you dribble s..t,’ ‘you always dribble f..g s..t’ and then hung up.
The Managing Director called the employee back and told him that he would not be spoken to in that way, and then terminated his employment. The FWC decided that the employees conduct was wrong and warranted a warning or counselling. However, it was also held that the swearing did not amount to serious misconduct, and that his dismissal for swearing was unfair as:
– His co-workers did not overhear the swearing, therefore it didn’t undermine the Managing Director’s authority in the workplace.
– The fact that the employee used the language when he was angry.
– The Managing Director did not meet with the employee to discuss the swearing before he dismissed him, and the employee was not given an opportunity to explain his behaviour.
– The fact of swearing being common in the workplace in 2015, and that bad language was especially common in the transport industry.
Lessons from the cases
Whether or not dismissal for swearing at work will be unfair depends on:
– The context in which it took place. Where, to whom the words were said, and how the conduct occurred.
– Whether or not the swearing was directed at customers in the public eye, or took place in a private conversation between an employee and their boss.
– Whether or not the workplace in question had a culture of using bad language. Specifically, whether bad language was common in that workplace and went unpunished. Prior leniency toward swearing may make it unlikely that the employer would have the ability to terminate an employee for the same conduct.
– Whether or not the employee was afforded procedural fairness in their dismissal. That is, making sure that the employee was properly informed of the claims of swearing, and given an opportunity to respond to them.
– Failure to follow an impartial and transparent investigative process may affect the dismissal.
– Whether or not the swearing was accompanied by physical violence by the employee.
– Whether or not any policies on swearing existed. Employers should have clear policies on swearing that are consistently enforced.
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