Bill-Fitzgerald

Bill Fitzgerald

AMMA’s principal consultant based in Hobart, Bill FitzGerald, reviews a Tasmanian case where the Fair Work Commission reinstated an employee who swore at his employer, deeming his conduct was not ‘sufficiently insubordinate’ to justify dismissal.

EARLIER this year, an unfair dismissal case involving a truck driver who swore at his manager and was later reinstated by the Fair Work Commission had many in the industrial relations community scratching their heads.

While some believed this marked a change in approach by the tribunal in handling swearing cases, I do not believe this to be the case. Rather, it simply reinforced that care and full procedural fairness must be exercised in all unfair dismissal cases to minimise any costly future application for remedies or litigation.

Let’s take a look at this case.

The case:

In Smith v Aussie Waste Management, one of the company’s garbage truck drivers was questioned over the phone about the time it was taking to perform his duties and responded with a swearing tirade at his manager, including saying ‘you dribble shit, you always dribble f…..g shit’.

The employee was summarily dismissed, first immediately over the phone and then confirmed with further correspondence.

In hearing an application for unfair dismissal remedy, Deputy President Wells found that even though the employee’s behavior was not acceptable, the swearing alone was not enough to terminate him.

In making this finding, DP Wells considered the following:

  • the type of language was not uncommon in the workplace;
  • the conversation was not overheard by other employees; and
  • the worker didn’t intend to undermine his manager’s authority in the workplace.

In her decision, DP Wells also indicated that attitudes towards swearing have changed over time and that there needs to be an additional serious element, such as the threatening of violence, before termination can be justified.

“There is no suggestion in the evidence that Mr Smith’s conduct involved occupational violence, breaches of health and safety policies or regulations, fraud, stealing or intoxication in the workplace,” DP Wells said in her ruling.

“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 employer’s decision was therefore overturned and the truck driver reinstated to his position.

The precedents:

Rather than view this case as an indicator that tribunals will take a more lenient approach to swearing, AMMA members should see this as another confirmation that each case involving the relation between unacceptable conduct and dismissal action will be judged on its perceived merits.

In fact, there have been a number of recent Commission decision which reinforce this view and demonstrate that there may need to be an additional element before termination decisions will be upheld:

  • In a 2013 case (Macdougall vs SCT Pty Ltd), an employee in a sales role who swore at a potential customer was deemed to have been justifiably dismissed because his conduct could have adversely impacted the company’s reputation.
  • In a 2014 case (Rikihana vs Mermaid Marine), the dismissal of a wharf worker for swearing was also upheld after his behaviour was found to have been ‘contemptuous and aggressive’, and against the company’s efforts to improve workplace culture.
  • In another 2013 case (Cronin vs Choice Homes), an employee who was dismissed after calling his CEO a ‘wanker’ in a companywide email was reinstated. Even though the term was regarded as offensive, the dismissal was regarded as disproportionate because employees who had engaged in more serious actions were not terminated.

Advice for AMMA members

There is no doubt the acceptable standards of language has changed in recent times and that as a result some may view the tribunal as taking a more lenient approach to swearing in the workplace.

However, primarily these tribunal decisions and the provisions of the Fair Work Act mean that AMMA members should seek specialist advice before a termination decision is taken.

Overall, it is critical that employers act consistently and not condone inappropriate behaviour by ignoring it.

If the swearing is a manifestation of insubordination, it is reasonable to believe a termination decision would be upheld by the tribunals. However, if the behaviour could be framed as ‘normal robust language’ which happens as matter of course, it is quite possible the tribunal may not uphold terminations based on the swearing alone.

Resource employers can contact their nearest AMMA office to obtain timely and professional advice related to these issues and any other employee relations matter.