2 min read

When does swearing justify dismissal?

In recent months, quite a few cases have highlighted the issue of swearing in the workplace, and not surprisingly, we’ve been getting a number of questions through to the Workplace Helpdesk about it.

So in today’s Bulletin, I thought it would be a good idea to go over when it can be acceptable to dismiss an employee for swearing in the workplace – and when doing so may be inappropriate.

One recent case that highlights the issue of swearing in the workplace is Symes v Linfox Armaguard Pty Ltd [2012] FWA 4789.

In this particular case, an employee was sacked from his job as a security guard after he swore several times at his manager in a heated exchange. The employee later phoned his manager to apologise and also wrote a formal letter of apology, but was dismissed without notice the following day.

In examining the case, Fair Work Australia (FWA) found that although Linfox Armaguard did have a policy which stated that swearing in the workplace was not tolerated, it still happened regularly and was accepted. FWA also found that the employee had been dismissed without being given a reasonable opportunity to respond to the allegations against him.

After taking in to account all the circumstances, FWA found that although the employee’s swearing was “totally inappropriate and unwarranted” and his behavior did amount to misconduct, his dismissal was “harsh, unjust and unreasonable” given all the circumstances.

FWA ordered that the employee be reinstated with back-pay, but less six weeks’ pay as a punishment.

So how can you tell when swearing justifies dismissal – and when it doesn’t?

If an employee swears in the workplace, this can amount to misconduct. But it does depend on a number of factors, such as:

  • the culture of your workplace (e.g. whether or not your workplace environment is one in which swearing is allowed and accepted);
  • the circumstances and context of the swearing (e.g. whether it was said jokingly or aggressively, etc); and
  • who or what the swearing was directed at (e.g. swearing at a manager can amount to insubordination and consequently be serious misconduct in some circumstances, particularly when combined with a refusal to perform duties).

However, when you are considering whether to terminate an employee’s employment for misconduct, you also need to think about unfair dismissal laws.

If you have 15 or more employees then you must follow full and proper procedures. Is the conduct serious enough to warrant summary dismissal for serious misconduct? If you think so, make sure you give the employee an opportunity to respond to the allegations and consider their response, in a meeting in which they are given the opportunity to bring a support person.

Alternatively, you may prefer to give the employee a written warning for the conduct (which can be a ‘first and final’ warning) and then monitor their behaviour.

Remember that even if you have a valid reason for termination and give the employee natural justice (an opportunity to respond to the allegations, etc.), termination of employment must still be a proportionate response to the conduct. That is, the ‘punishment’ must fit the ‘crime’.

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