In recent months, there have been a number of unfair dismissal cases highlighting the issue of swearing in the workplace.
It is well accepted that employees have an implied obligation to treat their employer with respect and courtesy. So when is it acceptable to dismiss an employee for swearing in the workplace – and when would doing so be an unfair dismissal ?
In a recent decision by the Fair Work Commission, Deputy President Wells found that the termination of a garbage truck driver who abused the managing director of Aussie Waste Management Pty Ltd was an unfair dismissal. At hearing the driver conceded that he had said “you dribble sh-t. You always dribble f–king sh-t” in a heated exchange with his boss.
In her Deputy President Wells said that the driver should have been disciplined but not dismissed for two main reasons. The first was that the driver had not sworn in front of other employees or clients and had not undermined or embarrassed the managing director. Deputy President Wells said “in the context of a one-on-one heated discussion with his manager without anyone else present the driver’s conduct was not sufficiently insubordinate”. Secondly, Deputy President Wells recognised that swearing at work had in general terms become increasingly tolerated. She noted “I would not consider it uncommon for bad language to be used in the workplace in this or other similar industries”.
The decision of Deputy President Wells follows the decision of Commissioner Cargill in Symes v Linfox who stated “…whether or not the use of bad language is considered to amount to misconduct warranting dismissal depends on factors such as context, location, the person it is directed towards and the manner in which it was said..”
In that matter Mr Symes told his supervisor to “get fu–ed” before hitting the roster board after he was told by his manager that his position was being revised. Mr Symes was dismissed for serious misconduct the following day.
Commissioner Cargilll stated that while Mr Symes’ language was “totally inappropriate and unwarranted”, the workplace was one in which “bad language is commonly used” and the swearing did not undermine his supervisor’s authority. He also noted that the violence was not directed towards a person and was not intending to harm anyone. He subsequently found that the dismissal was an unfair dismissal within the meaning of the Act and ordered that he be reinstated without pay for the period between his dismissal and his reinstatement.
Both decisions demonstrate that the context and the workplace are determinative, and that employers run the risk of an adverse unfair dismissal finding if they apply a blanket rule that swearing is a sackable offence.