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9 May 2013 Swearing at work - can it cost you your job?

By Richard Ottley, Partner and Laura Sowden, Solicitor


In Brief

What is appropriate and inappropriate conduct in the workplace is constantly evolving. Whether swearing is regarded as offensive is often informed by the context, the type of swearing and the audience. The question of whether swearing at work can cost you your job is a highly relevant one. Several cases where employees were dismissed for conduct involving swearing provide some guidance on the law in this area.


Case Studies
Mr Roderick Macdougall v SCT Pty Limited T/A Sydney City Toyota [2013] FWC 1077

Mr Macdougall brought an action for unfair dismissal when he was summarily dismissed after swearing at a customer. Mr Macdougall was allegedly aggressive to a customer, and said to him "Well I guess that means that you wasted my f...g time."

Mr Macdougall claimed he had not sworn at the customer personally and that he had not been aggressive. However evidence from witnesses indicated that he was pretty aggressive. Sydney City Toyota received complaints from an important customer who witnessed the incident and also from the customer's manager.  An investigation was conducted and Mr Macdougall was summarily dismissed for conduct which caused imminent risk to the profitability and reputation of the business.

The Fair Work Commission rejected the claim the dismissal was unfair because it considered that customer service was a key part of Mr Macdougall's job, his actions threatened the business, Mr Macdougall was informed of the allegations and he was given an opportunity to respond to them.

Webster v Mercury Colleges Pty Limited [2011] FWA 4772

Mr Webster, a teacher, was dismissed following his use of the swear word "f...k" in an English language exercise with students. He then lodged an unfair dismissal claim.  Mercury Colleges claimed the swear word had been in every sentence of the worksheet he provided to the students and that it was highly offensive.

Mr Webster claimed he had used the swear word as part of his teaching in order to discuss with the English language students, the various uses and meanings of the word. He explained that English language students often hear the word and feel instantly insulted when the word is not intended by the speaker to be insulting. Alternatively because the word is used frequently by Australians, the students may use it at times when it is not appropriate.

It was significant that Mr Webster was not given the opportunity to respond to the claims. Further upon dismissal Mr Webster a citizen of the United Kingdom had to immediately leave Australia because of his visa conditions. The dismissal had a significant impact on Mr Webster forcing him to relocate.

The Fair Work Commission considered there was a valid reason for dismissal and that Mr Webster was notified of the reason. However, he was not given an opportunity to respond to Mercury Colleges' concerns and thus the dismissal was unfair. The Fair Work Commission ordered $16,874.36 be paid in compensation to Mr Webster.

Symes v Linfox Armaguard Pty Ltd [2012] FWA 4789

Mr Symes was summarily dismissed following an incident where he swore at a supervisor and disobeyed a direction from that supervisor. Linfox claimed Mr Symes told his supervisor to "get f...d" when requested to return to a meeting and then complained about the "f....g roster". The incident ended with Mr Symes pushing his finger against the roster board which resulted in him sustaining a finger injury and the roster board cover falling to the floor.

Mr Symes later apologised to his supervisor and the relevant manager. Linfox's weapons policy stated employees were not to display anger and aggression while holding a firearm (Mr Symes was wearing his firearm during the incident). There was also a policy that employees should not swear in the workplace. Linfox claimed Mr Symes had breached these policies. It was admitted that Linfox did not enforce the no swearing policy, and that swearing occurred regularly in the workplace.

Following the incident, a disciplinary meeting was held at which Mr Symes' supervisor was present. Linfox then terminated Mr Symes' employment. Mr Symes lodged an unfair dismissal claim.

Mr Symes disputed that he was given a direction to return to a meeting, challenged his supervisor's involvement in the investigation and disciplinary process and claimed he had not been informed that Linfox believed he had breached the weapons policy. He also claimed swearing was common in the workplace and that no disciplinary action had been taken for swearing in the past.

The Fair Work Commission did not consider that the supervisor telling Mr Symes to return to a meeting was a direction. However, Mr Symes swearing was inappropriate and unwarranted albeit that the workplace was one in which swearing regularly occurred. The Commissioner did not accept Linfox's claim that Mr Symes had been physically violent, finding there was no threat to the supervisor and that pushing the board with his finger did not constitute violence. It was procedurally unfair that the supervisor was part of the investigative and disciplinary process.

The Commissioner concluded that Mr Symes' conduct amounted to misconduct but that was not an adequate reason for dismissal in these circumstances and ordered Mr Symes' reinstatement in addition to compensation for six weeks out of work following the dismissal.

What do these cases tell us?
  • Whether or not dismissal for swearing at work is appropriate and would be upheld by the Fair Work Commission  if challenged, may depend, amongst other things, on the context of when, to whom, where and how the conduct occurred.
  • Following proper procedures in terms of investigating a claim an employee has been guilty of misconduct (including swearing) is vital. Failure to follow an impartial and transparent process may jeopardise any decision to terminate.
  • It is also important to ensure that the claims are put to the accused employee and that they are given a reasonable opportunity to respond.
  • Employers should consider the culture of their workplace and how employee swearing is to be treated. It is important for employers to be consistent in their approach to swearing as prior leniency may compromise the ability to terminate for swearing.
  • Appropriate workplace policies will assist employers in setting standards and being in a position to enforce those standards in the workplace.

 
If you have any questions or are considering a workplace policy on conduct in the workplace please call:

Richard Ottley, Partner  |  Phone: +61 2 9233 5544  |  Email: rbo@swaab.com.au

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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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