23 February 2015 Swearing at a boss, is it always a sackable offence?

By Warwick Ryan, Partner


In a recent decision by the Fair Work Commission, Deputy President Wells found against the company that summarily dismissed an employee for abusing the managing director of the company. 

The company was an SME and the managing director and the garbage truck driver were having a telephone conversation which got heated.  In the course of that conversation, the employee said to the managing director:-

"You dribble s#*t, you always dribble f#*$ing s#*t".

The company proceeded to terminate the employee without having a meeting with the worker.  That was their primary mistake in dealing with this matter.  Had they met with the worker and given the worker an opportunity to explain why he had spoken to the managing director in such a fashion and furthermore, why they should not terminate him, the company may have been in a better position to defend their decision to summarily dismiss the worker. 

Deputy President Wells went further than that and found other reasons why the employee should not be terminated summarily for such conduct. 

Firstly, it was important in this case that the employee had not made that statement in front of other employees, thereby undermining the authority of management.  Had the statement been made in front of other employees, the finding may have been different.

Secondly, there was recognition that some workplaces in 2015 are not as averse to swearing as they once may have been in the 1940s.  That was a tacit recognition that swearing is tolerated in common conversation in the modern workplace, in a way that it may not have once been. 

If this had been a school rather than a garbage business, it may have been different.

In a decision of the Commission in March 2013 involving a sales executive from Toyota,  Senior Deputy President Hamberger found that the company's decision to terminate the sales executive similarly was justifiable because the aggressive conversation (which included the question to the client "have you ordered that f#*$ing car yet?") was directed towards the client and not just a member of staff.  Furthermore, conversation occurred in an open area of the business and the conversation threatened a relationship with one of the company's major clients.

Accordingly, swearing in a workplace even in an angry fashion, is not immediate grounds for termination.  The context in which it occurred is critical. 

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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