As employers continue to favour an increasingly relaxed workplace culture, the lines between life and work can become blurred. So is swearing in the workplace acceptable? Could an employee get sacked for dropping the ‘f-bomb’ on a tough day at the office? Recent case law shows that where expletives are concerned, context is everything.
Employers should consider all the circumstances before using the word ‘fired’ if they want to avoid unfair dismissal claims, fines and stop-bullying orders. Here are some ‘swearing’ cases with lessons for employers:
Horner v Kailis Bros Pty Ltd
Kailis Bros Pty Ltd boasted a relaxed workplace culture, where swearing was commonplace. However, the Fair Work Commission (FWC) still found Horner’s dismissal to be fair after he swore at his supervisor in front of other employees and was dismissed for misconduct.
Horner ignored prior warnings by Kailis Bros about his use of inappropriate language at the workplace and the Commission drew a distinction between swearing as part of a conversation and swearing ‘at’ someone, which was considered abusive.
The Lesson for Employers: issue warnings for swearing to make it clear to the employees that abusive and aggressive behaviour in the workplace will not be tolerated.
Brobbel v Sweets For You Pty Ltd & Anor
The Workplace Ombudsman prosecuted the operator of a Donut King franchise for swearing when negotiating an Australian Workplace Agreement with an employee. The conduct was considered ‘bullying’ and resulted in a fine of $12,000.00 for breach of the Workplace Relations Act.
The Lesson for Employers: leave swearing off the table when negotiating wages and conditions with your employees.
Kazmar v Medalist
In this case, an employee with ‘cerebral palsy’ was dismissed after telling a manager to ‘shove the roster up his a—.’ Even though the employee had been issued several warnings about his temper and outbursts, the FWC found that he was unfairly dismissed.
The dismissal was unfair because the employer did not take the employee’s disability into consideration, failed to maintain procedural fairness and the employee swore in frustration rather than aggression.
The Lesson for Employers: Consider all the circumstances and maintain procedural fairness.
Treen v Allwater
Allwater summarily dismissed their cleaner for bullying and harassment after the cleaner sent a text message that referred to another colleague as a ‘f**king scab.’ This was the first instance of misconduct by Treen, who had been an employee of Allwater for seven years. The FWC said the dismissal was unfair because Allwater’s response was inconsistent with the way it treated other employees that engaged in similar misconduct.
Although the misconduct was a valid reason for dismissal, the singular nature of the conduct, and the lack of procedural fairness, meant that it could not be classified as bullying or harassment. Treen was reinstated without a compensatory order for lost wages.
The Lesson for Employers: ensure that you remain objective and consider all factors when investigating misconduct and harassment and before terminating.
CF v Company A
The applicants were employed by a small real estate business. They alleged bullying by their Property Manager. The Manager’s conduct included swearing, yelling and inappropriate language. Company A conceded that the Manager’s behaviour amounted to bullying and was a risk to health and safety.
The Commission made a number of stop-bullying orders, which instructed the employer to establish appropriate return to work arrangements and implement anti-bullying policies.
The Lesson for Employers: implement and enforce anti-bullying procedures to avoid stop-bullying orders and ensure the wellbeing of your employees.
What should you do?
First, employers should have a non-swearing policy. The benefit of this is that employees will understand what behaviour is appropriate, and employers will have sufficient authority to take action for employee misconduct.
Second, employers should think carefully before dismissing employees for swearing at work. You should consider the culture of the workplace, the context and maintain procedural fairness before firing an employee.
Contact Peter McNamara today for your workplace law advice.
Read the full cases here:
Horner v Kailis Bros Pty Ltd [2016] FWC 145 (8 January 2016)
Brobbel v Sweets For You Pty Ltd & Anor [2008] FMCA 1016 (5 August 2008)
Kazmar v Medalist (Test-Rite) [2016] FWC 3008 (13 May 2016)
Treen v Allwater – Adelaide Services Alliance [2016] FWC 2737 (2 May 2016)