As evidenced by a number of recent workplace tribunal decisions overturning terminations of employment, swearing is often viewed as something that should be tolerated as part of normal culture within robust industries. However, as explained here by AREEA principal employee relations consultant Bill FitzGerald, having the correct policies in place can support a dismissal for offensive verbal behaviour.
IN H v Kailis Bros Pty Ltd [2016] FWC 145 (8 January 2016), Deputy President Gooley of the Fair Work Commission (FWC) upheld the dismissal of an employee of Kailis Bros Pty Ltd on the grounds that he had aggressively sworn at his supervisor, despite previously receiving a formal warning over the verbal abuse of a manager.
In this case the employee was complaining about a safety issue to do with him having to pick stock from back pallets under racks. It was claimed that he aggressively used the ‘f’ word and told his supervisor to ‘p**s off’.
The employee claimed that his back pain may have been a contributing cause of his frustrations which led to his outburst, but DP Gooley found no evidence to support this.
The employee also claimed other employees had not been dismissed for swearing and that swearing was part of the workplace culture. However, DP Gooley refused to uphold the employee’s application for unfair dismissal under s394 of the Fair Work Act, due to the employee’s prior warning and because the aggressive nature of his swearing could not be considered acceptable for the workplace culture.
Implications for employers
The case highlights the importance of firstly having a code of conduct (or similar policy) in place which clearly defines what interactions are acceptable and those which are not.
Secondly, in the event of a breach of the policy, managers should act consistently to ensure disciplinary action is taken in a timely manner and termination occurs where there are further breaches.
Although in this instance the employee apologised, this did not excuse him or provide any mitigating circumstances.
This case is also an example of how tribunals distinguish between the use of a swear word which could be viewed as common or acceptable in blue collar workplaces, against those directed in an aggressive way to supervisors/ managers.
For more information or advice on the development of workplace policies or the handling of a dismissal for misconduct, please contact Bill FitzGerald on (03) 6270 2256 or an AREEA consultant near you.
