Pub­li­ca­tions

Swear­ing in the work­place: The legal position

The recent Full Bench deci­sion of the Fair Work Com­mis­sion (FWC) in Illawar­ra Coal Hold­ings Pty Ltd T/A South32 v Matthew Gosek [2018] FWCFB 749 (Illawar­ra Coal), which gar­nered exten­sive media cov­er­age, has once again put the spot­light on the issue of swear­ing by employees.

Swear­ing in the work­place is more com­plex than the days of the old school yard, where the use of exple­tives could lead to deten­tion or worse, or at the fam­i­ly din­ner table, where the prospect, real or mere­ly threat­ened, of hav­ing one’s mouth washed out with soap loomed large. 

For­ma­tive expe­ri­ences notwith­stand­ing, as with many oth­er mat­ters of employ­ee con­duct, employ­ers need to be care­ful not to play moral guardian”.

Unless an employ­ee is work­ing with chil­dren, involved in broad­cast­ing or engaged in a sen­si­tive envi­ron­ment the mere act of swear­ing itself is unlike­ly to pro­vide a sound basis for ter­mi­na­tion of employment. 

Even polit­i­cal lead­ers are not as con­strained as they once were when it comes to the pub­lic use of exple­tives. In a recent inter­view with GQ mag­a­zine, Labor leader Bill Short­en exclaimed What the f***?”. You don’t have to go too far back to a time when such lan­guage from a Prime Min­is­te­r­i­al aspi­rant would have been unthink­able or even scan­dalous. Now it bare­ly caus­es a rip­ple. Even the Chief Exec­u­tive Offi­cer of a major min­ing com­pa­ny was recent­ly quot­ed in the Aus­tralian Finan­cial Review as say­ing that employ­ees stuck in the past could either fit in or f*** off”. Chang­ing soci­etal mores will inform the approach tak­en by the courts and employ­ment tribunals.

When con­front­ed with a sit­u­a­tion involv­ing swear­ing, employ­ers need to embark on a task some­what sim­i­lar to those who clas­si­fy con­tent for film or TV; that is, to care­ful­ly exam­ine the pre­cise lan­guage used, the con­text of the lan­guage and the way in which the lan­guage is used.

Swear­ing as threats or abuse

The FWC draws a dis­tinc­tion between swear­ing of itself (as an adjec­tive or excla­ma­tion) and the deploy­ment of exple­tives as part of abu­sive, or even more seri­ous­ly, threat­en­ing behaviour.

As Com­mis­sion­er Williams observed in Rik­i­hana v Mer­maid Marine Oper­a­tions Pty Ltd [2014] FWC 6314:

There is a gen­er­al­ly appre­ci­at­ed dis­tinc­tion between reg­u­lar­ly using swear words as part of every­day descrip­tive lan­guage and swear­ing aggres­sive­ly and mali­cious­ly at anoth­er person.” 

In the first instance deci­sion of Illawar­ra Coal, Com­mis­sion­er Rior­dan ordered the rein­state­ment of an employ­ee who had direct­ed epi­thets such as f*****g dog”, c***” and dog c***” towards colleagues.

On appeal, the major­i­ty of the Full Bench of the FWC found that Com­mis­sion­er Riordan:

… by focus­ing on the lan­guage and not the total­i­ty of the con­duct …down­played the char­ac­ter of the con­duct. The prob­lem was not that Mr Gosek swore at this (sic) work mates. The con­duct involved an exple­tive filled tirade which includ­ed threats direct­ed at employ­ees because they par­tic­i­pat­ed in an inves­ti­ga­tion. While the evi­dence sup­port­ed a find­ing that the term dog” was used in oth­er con­texts in this work­place, in this con­text how­ev­er, as was acknowl­edged by Mr Gosek, it was used to describe peo­ple that he believed had rat­ted on their mates. Mr Gosek believed that they had lied.

A sim­i­lar analy­sis was adopt­ed in the ear­li­er case of Horner v Kailis Bros Pty Ltd. [2016] FWC 145 in which the FWC held that the dis­missal of an employ­ee who had direct­ed exple­tives at his super­vi­sor was not unfair.

The appli­cant in that case, Mr Horner, had repeat­ed­ly used the f***” word (and vari­a­tions there­of) in an aggres­sive fash­ion”. He had been pre­vi­ous­ly warned about his use of exple­tives. Deputy Pres­i­dent Goo­ley held:

I do not accept Mr Horner’s jus­ti­fi­ca­tion for the lan­guage he direct­ed at Mr Stan­ton. Despite the cul­ture of swear­ing in the work­place, I find that Mr Horner’s lan­guage direct­ed at Mr Stan­ton was abu­sive. I do not accept that it was only when he told Mr Horner to piss off that he stepped over the mark. The entire exchange was abu­sive. This was not a case where the f’ word was sim­ply used as an adjec­tive. It was used aggres­sive­ly. I agree with Mr Stan­ton that no-one should expect to be spoke to like Mr Horner spoke to him. Mr Horner’s apol­o­gy does not alter his conduct. ”

As with oth­er forms of mis­con­duct, how­ev­er, the sever­i­ty of the con­duct will be con­sid­ered. Not all abu­sive swear­ing will pro­vide a sounds basis for ter­mi­na­tion of employ­ment. An illus­tra­tion of this is the deci­sion of Smith v Aussie Waste Man­age­ment Pty Ltd [2015] FWC 1044 in which the FWC held that the dis­missal of an employ­ee who said to his super­vi­sor, you drib­ble s***, you always drib­ble f****** s****””, was unfair.

In so decid­ing, Deputy Pres­i­dent Wells held:

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.”

A cul­ture of swear­ing in the workplace

One aspect of Com­mis­sion­er Riordan’s first instance deci­sion in Illawar­ra Coal that was upheld by the Full Bench of the FWC was a con­sid­er­a­tion of whether there was a cul­ture of swear­ing in the workplace.

As the Full Bench observed:

We do not accept that the Com­mis­sion­er had regard to an irrel­e­vant con­sid­er­a­tion when he found that this type of lan­guage was com­mon­ly used in the mine and there was no evi­dence that any employ­ee had been dis­ci­plined for the use of such lan­guage. In deter­min­ing whether there was a valid rea­son for the dis­missal, this was a rel­e­vant consideration.”
While the preva­lence of swear­ing or a per­mis­sive cul­ture of swear­ing in the work­place is a rel­e­vant con­sid­er­a­tion, the author­i­ties can­vassed above estab­lish that this alone won’t pre­clude a valid rea­son for ter­mi­na­tion where the swear­ing under con­sid­er­a­tion is threat­en­ing or abu­sive in nature.

It might, how­ev­er, pro­vide the basis for a suc­cess­ful defence where the swear­ing has been used mere­ly as an adjec­tive or excla­ma­tion in a work­place where oth­er employ­ees swear open­ly and freely with­out being disciplined.

Swear­ing as adjec­tive or exclamation

In con­trast to the use of exple­tives to threat­en or abuse, swear­ing in frus­tra­tion at an inan­i­mate object that has failed to func­tion as expect­ed (such as com­put­er or a car, much like a pro­fane ver­sion of Basil Fawl­ty in Fawl­ty Tow­ers”) or when used as an adjec­tive in descrip­tions of events is, as a gen­er­al propo­si­tion, far less like­ly to pro­vide a sound basis for ter­mi­na­tion of employ­ment. That said, as with almost all unfair dis­missal mat­ters, it will depend upon the cir­cum­stances of the case.

Con­sid­er­a­tions for employers

When con­sid­er­ing whether dis­ci­pli­nary action should be tak­en against an employ­ee who is using offen­sive lan­guage, and if so the sanc­tion to be imposed, it is impor­tant for employ­ers to take account of the fol­low­ing factors:

  • the way in which the lan­guage was deployed: was it mere­ly descrip­tive or an expres­sion of frus­tra­tion or was it deployed abu­sive­ly or, even more seri­ous­ly, to intim­i­date or threaten?;

  • the par­tic­u­lar words that were used – even in these more per­mis­sive times there is a scale of exple­tive offensiveness;

  • the vol­ume and tone of the words used;

  • the spe­cif­ic con­text and cir­cum­stances in which the words were used;

  • the nature of the work­place and the work being under­tak­en (par­tic­u­lar­ly if it is cus­tomer-fac­ing”); and

  • whether swear­ing is com­mon­place in the work­place, includ­ing any policies/​codes address­ing swear­ing and the con­sis­tent enforce­ment of such poli­cies through dis­ci­pli­nary action (where warranted).