The Fair Work Commission has recently decided that an employee who was terminated for swearing at his manager was unfairly dismissed. The decision begs the question: when is swearing at your manager acceptable?
The swearing
In the case of Smith v Aussie Waste Management [2015] FWC , Mr Smith, a garbage truck driver, had his employment terminated after saying to his manager, in a heated telephone discussion, ' You dribble sh#t. You always dribble f*#king sh#t.' On the face of it, this outburst looks sufficient to justify dismissal. However, the Fair Work Commission found that there were mitigating factors which rendered the employer's subsequent response (in terminating Mr Smith's employment) unfair. Those factors included;
- there had been no previous warnings given to Mr Smith in relation to swearing in the workplace;
- the conversation had not been overheard by any other employee and, as such, ' there was no propensity for Mr Smith's conduct to undermine [the manager’s] authority in the workplace' ; and
- the 'robust' nature of the workplace and the waste management industry in general.
The Commission specifically observed that; ' there is no doubt that workplaces are more robust in 2015 as they relate to the use of swearing, than they were in the 1940s. Further, I would not consider it uncommon for bad language to be used in the workplace in this or other similar industries.'
What was decided?
In short, the Commission considered that, although Mr Smith's conduct was unacceptable, it was not sufficiently serious to justify dismissal; ' Whilst Mr Smith's conduct should not be tolerated in the workplace, in the context of a one-on-one heated discussion with his manager without anyone else present, I have concluded that the conduct is not sufficiently insubordinate to establish a valid reason for dismissal. The conduct did, however, warrant a form of disciplinary action, other than dismissal .'
Similar swearing cases
You may be surprised to learn there have been a number of previous cases dealing with the issue of swearing in the workplace leading to a termination of employment. Here are a few 'highlights'. In the case of MacDougall v Sydney City Toyota [2013] , Mr MacDougall, a car salesman, was alleged to have aggressively said to a customer (who presumably decided not to buy a Toyota), ' Well, I guess that means that you have wasted my f**king time .' The result? Well, in this case the Commission decided that Mr MacDougall's subsequent dismissal was not unfair because the swearing was in the presence of a customer, that customer service was a big part of Mr MacDougall's role and it caused an ' imminent riskto the profitability and reputation of the business' . In Paul Cronin v Choice Homes (Qld) Pty Ltd, Mr Cronin, a financial controller, was summarily dismissed because he 'replied-all' to an email containing the address group 'All Staff' and stated (in a joking fashion) that one of the CEO's hobbies was 'excessive masturbation'. Mr Cronin was found to have been unfairly dismissed because the workplace culture was shown to tolerate racist, sexist and offensive behaviour (including via email). In that context, the Commission found Mr Cronin's dismissal to be disproportionate.
WTF can we learn from these cases?
When it comes to swearing in the workplace, context is everything. As was stated by the Commission in the Smith v Aussie Waste Management case; ' The use of bad language towards another person, especially a supervisor or manager, is of a different character to swearing at an inanimate object or its use as an adjective. However, any use of swearing must be considered in the context of the workplace .' If employee swearing is an issue, consider the following points:
- What is the context of the swearing? When, where and in front of what audience has the swearing occurred?
- Follow proper process. Allow the employee an opportunity to respond to the allegations. Do not let emotion rule the decision to terminate an employee's employment.
- Have a long, hard look at the culture of the workplace. How does Jane telling her supervisor to ' Get F**ked' compare to previous instances of bad language and offensive behaviour?
- Appropriate workplace policies and standards should be developed setting out what is and what is not appropriate.
