Swearing in the workplace is becoming more common nowdays than it did in previous decades, particularly in certain industries and occupations.
Given such, it is important for employers to understand their legal position when swearing does occur in the workplace, and in particular, when such may resault in the dismissal of an employee.
An employer is entitled to instantly dismiss an employee for ‘serious misconduct’, which includes:
- theft
- fraud
- dishonesty
- assault
- intoxication at work
- refusing to carry out a lawful and reasonable instruction that is consistent with the employment contract.
It is noted that ‘swearing’ does not expressly form part of the above list, and given this, employers should be cautious when considering instantly dismissing an employee for swearing.
In a recent case before the Commission, an employee said to his boss over the phone “you dribble s**t, you always dribble f***ing s**t!”, before hanging up. The employee was instantly dismissed for his comments, and he filed an unfair dismissal claim against his former employer. The Commission held that although the employee’s conduct should not be tolerated in the workplace, his conduct did not constitute serious misconduct, and that the dismissal was unfair.
The Commission’s decision seems to be based on the following factors:
- No other person observed the telephone discussion between the employee and his boss, and therefore, this conversion did not undermine the boss’ authority in the workplace;
- The employee made the comments in anger (a previous case had stated that “a single outburst of bad temper, accompanied with regrettable language, is usually an insufficient ground for dismissal”);
- Workplaces in Australia becoming more robust in 2015, where swearing is more common and generally accepted in some industries / workplaces.
It should be noted that swearing at or in front of a customer / client of the employer may very well constitute serious misconduct, as such conduct may cause a serious and imminent risk to the reputation of the employer’s business.
