Times are changing. Behaviour at work once thought of as seriously inappropriate may now not raise an eyebrow. So can employers now terminate an employee for swearing at work? Unsurprisingly, the answer depends on the context in which the behaviour took place, whether what was said was something regularly accepted in the workplace in question, and the tone and manner in which it was said. We unpack this question below and look at three cases to illustrate how courts have dealt with forms of serious misconduct, including inappropriate language.
The Fair Work Ombudsman defines serious misconduct as “conduct by an employee that is intentional and causes serious immediate risk to the health or safety of a person, or the reputation, viability or profitability of the business. For example, theft or assault in the workplace.”
Australian courts have been reluctant to find employees guilty of serious misconduct on the basis of one or two events unless:
- They involve deliberate actions; or
- These actions have continued despite an employer providing an employee with warnings as to the unacceptable behaviour, and a clear statement that continuing to act in this way may result in dismissal; or
- Employers have actively sought to reduce such behaviour, for example by requiring employees to undertake training on the relevant problem behaviour.
In one recent case, an employee was dismissed for serious misconduct by the making of remarks to a colleague based on their “sex, religion, culture or heritage to get a reaction”. The Commissioner held that such remarks were “highly offensive and inappropriate” and a valid reason for termination. However, as the employee was never formally warned about his behaviour, and there was no consistent investigation of other employees’ similar behaviour in the workplace, his dismissal was found to be unfair. The Commission ordered that the employer reinstate the worker and pay a reduced amount of back pay due to his misconduct.
What is the Court’s Position?
In the case of Smith v Aussie Waste Management Pty Ltd, a truck driver was summarily dismissed by his employer for swearing at him on a telephone call. The truck driver (“Smith”) was sent an SMS by his manager stating that as the manager was reviewing the GPS location of the truck, he saw that Smith was driving slower than usual. Smith called his manager in response and had a heated exchanged where he allegedly said, “You dribble s–t, you always dribble f–g s–t”, and hung up. The Manager proceeded to terminate Smith’s employment and instructed him to drive the truck back to the depot.
Smith made an application for unfair dismissal which was upheld by the Fair Work Commission (“FWC”). The FWC found that:
- Mr Smith’s behaviour was unacceptable and warranted a warning and/or counselling but that it did not constitute serious misconduct.
- Mr Smith was not provided with procedural fairness in that he was not given any opportunity to explain his behaviour before he was dismissed.
- In workplaces of 2015, swearing may be common (depending on the particular type of workplace) and where a workplace has a culture of accepting this type of language from other employees, this will give weight to the argument that dismissal for one instance of swearing is unfair.
Conversely, in Rikihana v Mermaid Marine Vessel Operations Pty Ltd, a wharf worker (“Rikihana”) was dismissed for swearing at a co-worker in what was described as a “contemptuous and aggressive” manner and the FWC did not find that this was unfair dismissal. The FWC stated that Rikihana’s “aggressive and abusive reaction towards Mr Hall was totally unjustified and inexcusable” and “was conduct that of itself was a valid reason for his dismissal”. Additionally, Rikihana participated in two meetings on the day of the alleged behaviour where he was given the opportunity to explain himself, and another final meeting a week later. He was allowed to have a support person present and during the meetings, it was explained to Rikihana that his situation was serious.
The court, however, decided that a final warning was not required in Timothy Graham v Bankstown District Sports Club Ltd. Here, an employee of 62 years of age continually made “personal and offensive” remarks about a junior colleague, constituting sexual harassment.
The Employer had policies in place regarding bullying and harassment, and, importantly, had also required this employee to attend training about such matters. The employer dismissed the employee on the basis of the offensive remarks without giving him a final warning. The court found that this was acceptable given in part, because the employee had attended training and had been required to comply with policies prohibiting this behaviour, and yet it was apparent that his behaviour would likely continue.
Tips for Employers
Is this behaviour a once off?
Has the employee sworn before or is this an isolated case of frustration? If this is the first time this behaviour has occurred without significant inflammatory surrounding circumstances such as aggression and endangering others at the workplace, it is unlikely an isolated incident would constitute serious misconduct.
Has the employee has an opportunity to explain the behaviour?
The court will check to see if it considers an employee has been given procedural fairness, including whether the employee was given the opportunity to explain the behaviour and why it occurred and any reasons for it not being likely to reoccur. Employers should take detailed notes of any such meeting and provide the employee with an unequivocal warning that continued instances of this behaviour may lead to dismissal.
Have you provided training?
If you are aware that there are some widespread or common behaviours in your workplace that are unacceptable, you should provide employees with information about this. Of course days of training may not be practical for your business, but sometimes a discussion over breakfast or lunch for 20 minutes can be enough to make employees aware of their obligations. Ensure that you get employees who attend any such meeting sign an attendance sheet proving their participation.
Questions about dismissing an employee over inappropriate language? Ask our employment lawyers on 1300 544 755.