Swear­ing at work — can it cost you your job?

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.