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Swearing has become relatively normalised in the workplace within many industries. As an employer, you may wonder whether an employee swearing is enough to terminate their employment. The answer depends on various factors such as:

  • the context in which the behaviour takes place;
  • what was said; and
  • the tone and manner in which it was said.

If the behaviour amounts to ‘serious misconduct’, you may be able to discipline or terminate the employee. This article explores: 

  • when swearing might amount to serious misconduct; 
  • what the relevant factors to consider might be; and
  • when you may be able to terminate the employee. 

What Is Serious Misconduct?

Serious misconduct is when an employee engages in deliberate behaviour that causes a serious and immediate risk to the health or safety of a person or the reputation or profitability of your business. 

Examples of serious misconduct include:

  • engaging in theft, fraud, assault or sexual harassment at work;
  • being intoxicated at work
  • refusing to carry out lawful and reasonable instructions that are within an employee’s contract.

Hence, swearing does not, in and of itself, fall under these categories. 

In Australia, courts rarely find employees guilty of serious misconduct. However, suppose your employee’s behaviour is deliberate and ongoing despite repeatedly providing a warning or actively seeking to reduce the behaviour, e.g. mandating training on the problem behaviour. In that case, a court might qualify this behaviour as serious misconduct.

Recently, a business dismissed an employee because of remarks they made to colleagues based on their sex, religion, culture or heritage. Despite the remarks being ‘‘highly offensive and inappropriate’, the Courts decided this was an unfair dismissal. Notably, the employer or business never provided a formal warning to the employee. Likewise, no consistent investigation of similar behaviour in the workplace had occurred. Therefore, the court ordered the employer to give the employee back his job and pay a reduced backpay due to his misconduct.

What Is Unfair?

In one case recently decided by the Fair Work Commission, an employee told his boss over the phone, “you dribble s**t, you always dribble f***ing s**t!” before hanging up.

The employer instantly terminated the employment. The employee then filed an unfair dismissal claim against his employer. Although it ruled the employee’s conduct was inappropriate, the Fair Work Commission decided that the phone call did not amount to serious misconduct. Therefore, the dismissal was unfair. 

The Fair Work Commission came to this conclusion because:

  1. no one else observed the telephone call, and so the conversation did not undermine the employers’ authority; 
  2. the employee made the comments in a single outburst of anger; and 
  3. swearing is becoming more common in some industries and workplaces, which was the case in that workplace.  

The circumstances of the case were critical. The outcome may have been very different if, for example, the employee had sworn in front of a customer. However, this case highlights factors that a court will consider when deciding whether swearing equates to serious misconduct. 

When Will Swearing Constitute Serious Misconduct?

If your employee swears in the workplace, you may wish to take action. Whether that means a warning or more serious disciplinary action will depend on the circumstances. Below, we outline the key factors to consider when deciding how to proceed. 

Is the Behaviour a Once Off?

Consider whether the employee has sworn before. Suppose it is the first time the employee has sworn and the swearing was unaccompanied by other unacceptable behaviour, such as aggression towards you or other employees. In that case, it is unlikely that the incident would amount to serious misconduct. 

Did You Provide an Opportunity for the Employee to Explain Their Behaviour?

If you decide to take disciplinary action, you will need to show that you have treated your employee fairly. In addition, you should allow your employee to explain their behaviour and assure you that it is unlikely to happen again. 

Have You Provided Your Employees With Training?

If there are widespread unacceptable behaviours in your workplace, you should address them with your employees. If training days are not practical for your business, a brief discussion may be adequate to remind employees of their obligations. Ensure that you require employees who attend a meeting or training session to sign an attendance sheet proving their participation.

Likewise, consider the workplace culture: is swearing typically acceptable? Make sure to be consistent in how you treat swearing between employees. To better foster a workplace environment that is respectful and professional, you might consider incorporating workplace policies and codes. These codes should indicate situations where swearing is unacceptable and consequent enforcement measures to avoid an unfair dismissal claim.

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Key Takeaways 

Modern workplaces are changing. Swearing might be acceptable in some industries and workplaces and not acceptable in others. If you are considering your options after an incident, you should take into account: 

  • what was said;
  • how it was said;
  • who heard it; and 
  • any other circumstances that mean you have to take action. 

The action you take could range from an informal warning to formal disciplinary proceedings. Typically, termination on swearing alone is not considered a valid reason for dismissal.

If you have questions about incorporating workplace policies, contact LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.

Frequently Asked Questions

Can you terminate an employee for swearing?

Consider the context of the swearing. Termination based on behaviour needs to be because the employee displayed serious misconduct. Swearing does not expressly fit the Fair Work Regulations for serious misconduct, potentially leading to an unfair dismissal application. However, if the swearing is connected with threats of assault or abuse towards other employees, this behaviour could be appropriate for dismissal. 

Importantly, there is an emphasis on other alternatives.

What are the alternative actions that an employer can take when an employee swears?

Some alternative actions include giving the employee a formal warning or providing/mandating training regarding the behaviour. As an employer, you want to actively seek to reduce behaviour that can damage the reputation of your business or make other staff feel uncomfortable or unsafe.

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