Employees should choose their words carefully; whilst ‘colourful’ language may be tolerated at times, profane and insulting language towards another employee usually isn’t.
In two recent cases, the FWC has shed light on when an employer may be justified in sacking an employee for verbally abusing co-workers. However, employers are cautioned to consider all the factors surrounding the employee’s conduct when deciding whether instant dismissal is warranted.
In the first case, the dismissal of a sales consultant at a car dealership was upheld after he verbally abused the dealership’s stock controller over the phone. The employee and his wife (also an employee) were on a rostered day off when his wife received a call from the stock controller informing her about an inquiry from a contractor.
Despite the fact that the inquiry was quickly resolved, the employee called back shortly afterwards and began to abuse the stock controller using words such as “don’t f***ing call us ever” and “we are busy”. She tried to explain to the employee that he should have left instructions not to interrupt them but he called her a “stupid c**t”’ and hung up.
The FWC also heard evidence that this incident was the latest in a series of unacceptable actions directed towards the stock controller and that the employee showed no remorse for any of his conduct. It was found that the employee’s behaviour was utterly unacceptable and constituted serious misconduct, justifying dismissal.
Similarly in the second case, an employee of a glass and glazing company was summarily dismissed after he yelled at his colleague: “Shut the f**k up bitch! You f***ing bitch! F**k off, shut the f**k up”. The employee had received a warning one week earlier not to use such language to the same employee when he said “I am not f***king explaining this to you”.
Evidence before the Commission established that some use of the ‘f bomb’ in the workplace was tolerated, and that the warning given to the employee the previous week did not provide clear consequences of using such language in an excessive or inappropriate way. While the FWC agreed the employee overstepped the mark and his conduct created a valid reason for the dismissal, it concluded that the conduct did not warrant instant dismissal and the employee was entitled to payment in lieu of notice.
From the latter case, a clear take-home message includes the importance for employers to implement a policy to regulate swearing in the workplace, and to ensure the workplace culture reflects the policy requirements. Had the employer implemented such a policy it would have placed the employee on notice that his employment was in jeopardy the second time around, and the employer may well have been justified in summarily terminating his employment.
Lessons for Employers
- First and foremost, implement a policy to regulate swearing in the workplace and ensure the workplace culture reflects the policy requirements.
- Where an employee uses inappropriate language or swears at co-workers, provide warnings to let them know their conduct is unacceptable.
- Ensure all warnings are documented. This will be useful in disciplinary proceedings or when providing evidence in unfair dismissal cases.
- Consider the context in which the language is used and whether your workplace culture accepts this kind of language.
- Ensure punishments are fair, appropriate and enforced consistently.
- Consider where the language has occurred. Is it at a staff function/party where alcohol is involved? Implementing a policy for conduct at workplace functions might be beneficial so employees are aware that standards of conduct still apply at social events.
- Remain vigilant on the interactions between staff. In some situations, verbal abuse can constitute Bullying and Harassment.
To a certain extent, swearing is tolerated in many workplaces. However, when an employee crosses the line their dismissal may be justified.