As an employer, behaviour which you once considered seriously inappropriate may now be perfectly acceptable. For example, swearing at work is becoming increasingly commonplace in many industries. If an employee has sworn in your workplace, you may wonder if swearing is enough to terminate their employment. The answer depends on 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 intentional behaviour by an employee that causes serious and immediate risk to the health or safety of a person or the reputation or profitability of your business. 

An example of this would be an employee assaulting another person or stealing in the workplace

In Australia, courts rarely find employees guilty of serious misconduct unless their behaviour is deliberate and ongoing despite you, the employer:

  • warning the employee about their behaviour; or
  • actively seeking to reduce the behaviour (e.g. by requiring employees to undertake training on the relevant problem behaviour).

In one recent case, an employee was dismissed because of remarks they made to colleagues based on their sex, religion, culture or heritage. Although the court said that the remarks were ‘highly offensive and inappropriate’, it decided the employee’s dismissal was unfair. This was because the employee was never formally warned about his behaviour, and there was no consistent investigation of similar behaviour in the workplace. The court ordered the employer to give the employee back his job and pay a reduced amount of back pay 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 employee. The employee then filed an unfair dismissal claim against his employer. The Fair Work Commission decided that, although the employee’s conduct was inappropriate, the phone call did not amount to serious misconduct and so 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.  

The circumstances of the case were very important. The outcome may have been very different if, for example, the employee had sworn in front of a customer. 

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. If it is the first time the employee has sworn and the swearing was not accompanied by other unacceptable behaviour, such as aggression towards you or other employees, it is unlikely that the incident would amount to serious misconduct. 

Has the Employee Had an Opportunity to Explain Their Behaviour?

If you decide to take disciplinary action, you will need to show that you have treated your employee fairly. You should give your employee an opportunity 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 can be enough 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.

Key Takeaways 

Modern workplaces are changing. Swearing may not be as unacceptable in your business as it once was. In certain industries and workplaces, swearing may be an everyday occurrence. In other industries or workplaces, hoewevr, swearing may still be unacceptable. If you are considering your options after an incident, you should consider: 

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

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