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Swearing in the workplace: instant dismissal or just use soap?

11 July 2016

Should an employer accept swearing or foul language in the workplace as part of its workplace culture or does it have the right to discipline or dismiss an employee? Here is a quick snapshot of some of the key issues to keep in mind:

1. Be satisfied on the balance of probabilities that the alleged conduct occurred

Before making a decision to discipline or dismiss an employee for swearing, ensure that you are satisfied that the alleged conduct occurred. This means that you will need to speak to the employees directly involved and any witnesses. Be sure to ask questions about what the employee was doing at the time of the alleged swearing, their tone of voice, whether they were yelling, and the exact words said. You will need to understand the context in which the alleged swearing occurred, whether the employee was directly swearing at the other individual, and whether there was any subsequent physical altercation.

2. Consider the culture of the workplace

If swearing is common in the workplace – ie it is frequently used in general conversation, and supervisors and managers are aware of the swearing, but rarely take action in relation to it – then disciplining an employee for swearing will be difficult. However, if an employer wants to change the culture of the workplace, and has provided training to employees about appropriate language in the workplace, and what is expected moving forward, then disciplinary action can be taken. Disciplinary action can also be appropriate if, despite the culture, the entire exchange between the employees involved amounts to verbal abuse and confrontation.

Conversely, if the employer has a Code of Conduct or other policy in place which:

  • makes it clear to employees that swearing in the workplace will not be tolerated;
  • details the consequences for swearing; and
  • is clearly communicated to employees and consistently enforced

then disciplinary action, including termination, may be appropriate.

3. Use of profanities may be forgiven in certain contexts

The context in which the swearing occurs is important. If, for example, an employee complains to their supervisor that they do not want to work overtime because they were not paid for the overtime they last worked, and this results in an exchange of profanities between the employee and their supervisor, the employee’s swearing can be forgiven, and will not warrant summary dismissal.

4. Swearing directed at CEO, manager or another employee is not generally tolerated

An employer will generally have a valid reason to dismiss an employee who directs a profanity to the CEO, their manager or another employee, subject to provocation. Absent any provocation, if the comment is unjustified, offensive, is directed at the individual, and is not used to emphasise a point, it will generally be seen as sufficiently insubordinate and be a valid reason for dismissal.

5. Swearing where previous warning issued

If an employee has been previously warned about their swearing in the workplace, and are on notice that if the conduct re-occurs, disciplinary action, including dismissal could result, then a further incident involving swearing, may warrant dismissal.

6. Substantive and procedural fairness must be afforded regardless of what has been said

An employer must afford an employee both substantive and procedural fairness prior to taking any disciplinary action against an employee for swearing, including dismissal. If an employer decides to dismiss an employee, and the employee has access to the Fair Work Commission’s unfair dismissal jurisdiction, then the employer must be able to satisfy the Commission that the dismissal was not harsh, unjust or unreasonable. In other words, the Commission must be satisfied that the dismissal:

  • as a consequence for the misconduct, is not harsh/disproportionate to the gravity of the misconduct
  • is not unjust because the employee was not guilty of the misconduct on which the employer acted; and/or
  • is not unreasonable because it was decided on inferences that could not reasonably have been drawn from the material before the employer.

As such, be sure to conduct a reasonable and fair investigation into the alleged misconduct and take into account all relevant information, including the employee’s employment history and their explanation for their alleged conduct, before deciding what disciplinary action to take.

7. Avoid differential disciplinary action

It is important that an employer is fair and consistent in the disciplinary action taken against employees for swearing in the workplace. A decision to dismiss an employee for swearing will most likely be considered unfair (putting insubordination aside), if for example, there is evidence that other employees have previously received a warning (or had their mouth washed out with soap), for their first indiscretion.

References:
Mr Tre Hain v Ace Recycling Pty Ltd [2016] FWC 1690
Jamin Horner v Kailis Bros Pty Ltd [2016] FWC 145
Mr Steven Gilbert v Downer EDI Engineering Power Pty Ltd t/a Downer Infrastructure [2015] FWC 5774
Grant Rikihana v Mermaid Marine Vessel Operations Pty Ltd [2014] FWC 6314

Like to discuss further or need help deciding on what disciplinary action to take against an employee? Contact Pamela Flynn (Director) for assistance.

The content of this article is general in nature and is not intended to and should not be relied on as a substitute for legal advice which is specific to your circumstances.

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