My word – swearing at work may be risky business

When does swearing justify disciplinary action – or even dismissal?

In determining whether swearing at work warrants any disciplinary action or even dismissal, there are many facets of the situation to consider, writes Gordon Williams

Let’s be honest, we’ve all been tempted to swear at work. Some of us may have even done so… albeit quietly, muttering under our breath. But what happens when an employee can’t help themselves and they swear out loud? When does swearing justify disciplinary action – or even dismissal? Usefully, there have been some recent unfair dismissal decisions that give us a pretty good idea how the Fair Work Commission (Commission) is likely to approach that question – but it’s not as clear cut as you might think.

Swearing, managers and privacy
In Smith v Aussie Waste Management Pty Ltd, the Commission decided Mr Smith’s summary dismissal for serious misconduct was unfair, despite it finding that he had sworn at his boss on the phone, telling him “you dribble s..t, you always dribble f…ing s..t”. The Commission noted that swearing at someone else, especially a supervisor or manager, is more serious than swearing at an inanimate object or using the word as an adjective. In this case, though, no one overheard Mr Smith swearing at his manager, so it didn’t undermine his authority in the workplace. While the Commission accepted Mr Smith’s conduct should not be tolerated, it decided that it wasn’t sufficiently insubordinate to establish a valid reason for dismissal (or amount to serious misconduct) – although some other form of disciplinary action would have been warranted.

When do offensive emails cross a line?
Cronin v Choice Homes (Qld) Pty Ltd is another case involving comments about the employee’s manager, in this case Choice Homes’ CEO. The CEO bought himself a Lamborghini shortly before clocking up 20 years with the company. Soon after, an employee sent an email congratulating the CEO, saying the Lamborghini was his reward. Mr Cronin (the financial controller and a member of management) responded to this by sending an email to all staff (including the CEO) attaching a fake resumé that listed “excessive masturbation” as one of the CEO’s hobbies and interests. The CEO took great offence and the company’s lawyers personally delivered a letter to Mr Cronin the same day summarily dismissing him for serious misconduct.

“It’s not as clear cut as you might think!”

However, the Commission said that a reasonable person would have perceived the email as a joke and the CEO’s reaction was disproportionate to its gravity. It also found no evidence that staff were personally offended by it – which was influenced by evidence of staff members routinely sending highly offensive emails to one another. As a result, the Commission decided there was no valid reason for the dismissal and that it was unfair. Not surprisingly, given the CEO’s feelings towards Mr Cronin, the Commission decided reinstatement was not practicable. However, that did not stop it from awarding him more than $60,000 in compensation.

Not so good customer relations
The third case of swearing at work involved a car salesman (Mr Macdougall) who was summarily dismissed for swearing at a client for not placing an order through him (Macdougall v SCT Pty Ltd T/A Sydney City Toyota). In this case, the Commission accepted the company’s evidence that Mr Macdougall swore at the client (saying he’d “wasted [his] f…ing time”), that he’d initiated the altercation and behaved aggressively, that it occurred in front of others (including customers) and that at the time, the company was tendering for the client’s business. Following a thorough investigation, the company summarily dismissed Mr Macdougall for “conduct which caused an imminent risk to [the company’s] reputation and profitability”. Unlike the previous two cases, the Commission decided Mr Macdougall’s dismissal was fair, noting that “a key part of the [his] job was to maintain good customer relations”.

Handling swearing in the workplace
So what’s my advice if you’re faced with a similar situation? I say proceed with caution and don’t overreact. Conduct a thorough investigation and answer the following questions before you make your decision:

  • What was the overall context?
  • Was the employee provoked?
  • What is the nature of your workplace – do employees routinely use bad language with one another?
  • Does management tolerate bad language?
  • Are there any policies prohibiting this type of behaviour (e.g. an anti-bullying policy) – and are they enforced?
  • Did the employee have previous warnings for similar conduct?
  • Did anyone overhear?
  • Could it impact your business or undermine a manager’s authority?

If, after having done this, you think dismissal is warranted, also remember that the bar is higher for summary dismissal. It may be safer to dismiss an employee with notice (or a payment in lieu), while maintaining you have the right to summarily dismiss for serious misconduct.