What are the Consequences of Swearing at Work?

Swearing appears to be on the rise in the workplace and arguably there is a wider trend to be more accepting of it, writes Workplace Lawyer Belal Moraby.

Swearing at work may result in a number of different consequences, all largely dependent on the circumstances. Should swearing be tolerated at work and does it amount to serious misconduct?

What is serious misconduct?

Serious misconduct is defined in the Fair Work Regulations 2009 to include wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment or conduct that causes serious and imminent risk to the health and safety of a person or the reputation, viability or profitability of the employer’s business.

Courts will consider a number of factors when deciding whether swearing constitutes serious misconduct and whether there is a valid reason for dismissal for such conduct.

These may include the specific language that was used, who it was directed to, the context in which it was used, how offensive it was, and whether there was a policy in place that regulated the use of such language.

The case law –

In Rikihana v Mermaid Marine Vessel Operations Pty Ltd a Wharf Worker was dismissed for swearing repeatedly and in an aggressive and unjustified manner.  At a pre-start meeting and in response to a safety issue he said to his Team Leader “You’re a d***head.  You are supposed to be a leader of this group.  You’re a c*ck”.  On other occasions he said “Get f***ed” and “F*** off”.  Whilst it was accepted that using swear words was commonplace as part of normal conversations in the said work environment it was the aggressive and abusive tone directed toward the Team Leader which was unjustified and could not be viewed as acceptable in the workplace.  It was held that he was not unfairly dismissed.

In Keenan v Leighton Boral Amey Joint Venture a Team Leader attended an official Christmas function and became significantly intoxicated and proceeded to tell a Manager to “F*** off mate!”.  He later said to a young female worker “Who the f*** are you? What do you even do here?”. There were other inappropriate comments and behaviour directed toward colleagues at another venue after the official function but this was held not to be related to work.  The employee was dismissed and it was held that only the incident involving the young female worker constituted a valid reason for dismissal.

However, the dismissal was held to be harsh and unjust due to a lack of procedural fairness as there was a failure to properly put all the allegations to the employee.  Further, the dismissal was disproportionate to the gravity of the conduct having regard to the lack of any significant ongoing workplace consequence of his behaviour, his good employment record, the isolated nature of the misconduct, the fact that he was intoxicated at a function where the employer failed to exercise any control over the manner of service of alcohol, the availability of alternative disciplinary measures and a disparity between the response to his conduct and that of another employee.

In Mark Baldwin v Scientific Management Associates (Operations) Pty Ltd a Mechanical Instructor working for a defence contractor was dismissed following abusive and offensive language and conduct directed towards his Manager.  He was found to have said “You are a big fat c***” and later “How do you like that you c***”.  He also scrunched up a timesheet and slammed it down on his Manager’s desk.  It was accepted that in the said environment swearing appeared to be tolerated and not uncommon.  However, in the opinion of the Deputy President there is a qualitative difference between swearing in the workplace per se and swearing directed to one’s Manager which in this case was done in a threatening manner which caused his Manager to become concerned for his own safety.  The dismissal was held to be valid.

In Smith v Aussie Waste Management Pty Ltd a Truck Driver employed by a waste management company was dismissed for swearing at the Managing Director.  In response to a text message he received advising him that he was slower than usual on his round he telephoned the Managing Director and said “You dribble sh**, you always dribble f***ing sh**” and then hung up on him.  It was held that whilst his conduct should not be tolerated in the workplace, in the context of a one-on-one heated discussion without anyone else being present, the conduct was not sufficiently insubordinate to establish a valid reason for the dismissal.  The Deputy President did not consider that his behaviour was inconsistent with the continuation of his contract of employment.  The Deputy President commented “There is no doubt that workplaces are more robust in 2015, as they relate to the use of swearing, than they were in the 1940s”.

Whilst the above case studies shed light on some of the factors that are taken into account in determining whether there is a valid reason for dismissal on account of swearing every case rests on its own facts. Therefore, it is critically important to seek legal advice if you have been dismissed as a result of bad language at work.

For further information or assistance contact your nearest TGB office.