Bill Fitzgerald

It is common for employees who work in a ‘robust’ environment like the resource sector to claim that swearing is not out of the ordinary in the workplace and as such does not constitute a breach of behavioural standards. However, in this case summar, AMMA principal employee relations consultant Bill Fitzgerald considers a recent decision drawing a distinction between ‘everyday descriptive language’ and swearing ‘aggressively and maliciously’ at a supervisor.

An employee, represented in this particular case by the Maritime Union of Australia, filed an unfair dismissal application after number instances of what his former employer Mermaid Marine described as poor and unjustified behavior led to termination of his employment contract.

During the altercation which preceded his dismissal, the employee, in response to an issue raise during a safety meeting, yelled at the leading hand in an ‘angry and aggressive manner’ to the effect that the leading hand should take safety seriously and calling him a ‘cock’.

The leading hand then swore at the worker, prompting a wharf supervisor to intervene by way of physical separation. Before leaving, the worker muttered ‘dickhead’ under his breath, causing the argument to escalate again.

During the hearing, Commissioner Williams heard how the worker had been place on notice on a number of occasions for behavior that ‘was not acceptable’, including telling the leading hand to ‘get f*cked’ when asked to assist another worker and abusing others more senior to him.

The escalating problem of poor conduct led the employer to implement a new Code of Conduct to improve interactions between employees.

The Commissioner concluded that there was ‘no doubt’ the employer had been concerned in the past ‘at the manner in which its employees interacted with each other and with their supervisors’. Consequently, he found that the employee understood what was expected of him and the consequences for failing to comply with the code.

“The evidence of the witnesses has satisfied me that whilst swearing by employees in general conversation had continued after the introduction of the new code of conduct there had been a general improvement in the interactions between employees,” Commissioner Williams said.

“I am satisfied from the evidence that neither before nor after the new code of conduct was introduced was it the norm nor was it commonplace for employees to direct swearing at individuals as distinct from using swear words as part of their normal conversations.

“There is a generally appreciated distinction between regularly using swear words as part of everyday descriptive language and swearing aggressively and maliciously at another person.

“His actions were another example of behaviour he had engaged in over the course of his employment where he had responded to persons in authority in a contemptuous and aggressive manner without justification.

“Consequently I do not accept that the employee’s behaviour towards the leading hand could be viewed as acceptable in the context of the cultural of this particular workplace.”

Commissioner Williams dismissed the application.

Click here to read the decision in full.

Implications for Employers

On worksites where swearing may be common place and employers wish to change the culture, there are some fundamental steps which are required in order to rebut the defence that swearing does not constitute a behavioral breach. While each case will be decided on its individual merits AMMA members can still take the following precautions:

  1. “Draw the line in the sand” by rolling out a new policy or code of conduct
  2. Define by way of example what is acceptable interaction and where behaviour may breach the code where swearing is directed at management and may be contemptuous
  3. Provide training and reinforcement of the new code at shift or toolbox meetings.
  4. Consistently pull up breaches of the code and administer formal warnings where appropriate.
  5. Properly investigate alleged breaches of the code and allow employees an opportunity to respond.
  6. Take consistent disciplinary action where the breach is proved.

For information and advice about dismissals and disciplinary actions, AMMA members are encourage to contact their local AMMA office to speak to one of our workplace relations experts.

Additionally, AMMA Training & Development can provide up-to-date and responsive workplace training to help your leaders deal with potential conflict in the workplace. Contact AMMA Training & Development on 1800 891 662 for more information.