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Casual swearing no excuse for conduct

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A little less conversational swearing

There is no doubt that swearing in the workplace is unacceptable - the Fair Work Commission (FWC) has repeatedly held that swearing in an abusive manner that is directed towards others is a valid reason for dismissal.

There is no doubt that swearing in the workplace is unacceptable - the Fair Work Commission (FWC) has repeatedly held that swearing in an abusive manner that is directed towards others is a valid reason for dismissal.

Often employees seek to justify their use of coarse language by claiming that there is a culture of swearing in their particular workplace. Earlier this year, in Pridham and Rose v Viterra Operations Pty Ltd T/A Viterra [2019] FWC 1018, the FWC held that commonplace use of coarse language at a wharf was a relevant workplace culture consideration when evaluating whether allegations of inappropriate conduct involving swearing were actually inappropriate.

The FWC has again turned its attention to swearing in the workplace in a more recent unfair dismissal decision, Boris v Metcash Trading Limited T/A Metcash [2019] FWC 3993, where an employee argued that his swearing in a formal meeting was “conversational swearing”.

The employee was employed as a part-time storeperson for Metcash. In November 2018, the employee’s supervisor notified him on his day off that he wished to meet with him discuss his poor performance and to bring his nominated representative. The evidence provided that there was “historical antagonism” between the employee and his supervisor.

Metcash claimed that at the performance meeting, the employee was aggressive and used expletives when speaking. At one point during the meeting, the employee said to his supervisor: “Under no circumstances are you to contact me out of work hours for any reason whatsoever. If you ever harass me out of work hours again, I will tell you exactly what I think of you and your mother.” Metcash claimed that the employee said this in an intimidating manner and that the supervisor was offended and felt threatened, leaving the meeting shortly after.

The employee was dismissed for serious misconduct, with Metcash relying on the employee’s unacceptable conduct, including his conduct at the performance meeting.

In the proceedings, the employee admitted that he swore and made the comment about the supervisor’s mother. The employee submitted that he swore in conversation but that it was not directed to anyone and the workplace “was a robust work environment where people use intemperate language and tensions.”

Deputy President Beaumont noted that:

Apparently, ‘conversational swearing’ appears to be dialogue punctuated by the occasional or perhaps often cited profanity…I assume that the reference to ‘conversational’ is because the offensive words are buffered by a tone and voice volume that would otherwise be considered ‘conversational’. Hence, to speculate, such profanities become accepted part of the meeting vernacular because they are couched in such a way.

However, DP Beaumont dismissed the employee’s submission of justifying his conduct on conversational swearing, stating:

…I do not accept that ‘conversational swearing’, such as that which was engaged in by Boris, is acceptable conduct in a meeting where conduct issues are being discussed, or allegations are being traversed, or a person has been asked to show cause. Whether that person is the employee against whom allegations are made, or the person facilitating or running the meeting, makes no difference.

DP Beaumont held that the employee’s conduct, including his conduct at the meeting was in breach of the employer’s Code of Conduct and found that there was a valid reason for dismissal. She also found that the employee’s dismissal was not harsh, unjust or unreasonable in the circumstances and dismissed the employee’s application.

 

Lessons for employers

Employers should not tolerate swearing in the workplace. It can be very easy, where there is an acceptance of profanities or expletives in the workplace, for such language to also be used in a manner which is abusive or threatening to other employees.

There should be a consistent response by employers against the use of unacceptable language to send the message to all employees that such conduct is inappropriate. Managers and senior employees have a key responsibility of setting the example for the workplace so that swearing does not become part of vernacular.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

 

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