There have been a number of recent unfair dismissal cases before the Fair Work Commission that have considered the issue of swearing in the workplace and whether such conduct justifies termination of employment.

These cases demonstrate that, in certain circumstances, dismissal may be one of the management options available to the employer.

Swearing at an important customer

In Macdougall v SCT Pty Limited T/A Sydney City Toyota [2013] FWC 1077, a car salesman who had shown a car to a customer was informed by that customer that he would place an order “next month”.

Two months later, the employee saw the customer in the service area getting a car.  The customer said he had purchased it from a rival dealer.  The salesman then became aggressive and responded “I guess you wasted my f**king time then.”

However, this customer was employed by a fleet-management company, and the dealership was an accredited preferred supplier. This arrangement was very lucrative for the dealership.

Following the altercation, the fleet-management company made a formal complaint to the dealership about the employee’s conduct. After an investigation, the employee was summarily dismissed. The employee then lodged an unfair-dismissal application.

The Fair Work Commission upheld the dismissal and rejected the employee’s application. The commission found that a key part of the employee’s job was to maintain good customer relations, and it was “hard to conceive of behaviour less conducive to achieving this goal than that engaged in by the applicant during the incident”.

It also found that the employee had put the dealership at risk of losing significant business from the fleet management company. Another critical factor was that the altercation took place in a public area of the dealership in front of other customers, further damaging the dealership’s reputation.

Swearing at a supervisor

The case of Jalea v Sunstate Airlines (Queensland) PtyLtdT/AQantasLink[2012] FWA1360 involved a workplace love triangle gone wrong.

The applicant was employed as a flight attendant. During her employment, she commenced a relationship with a colleague, who was a pilot. That relationship later ended and the pilot subsequently started dating another flight attendant. The relationship between the two respective flight attendants then turned sour.

This prompted a meeting between the applicant and her manager, during which the applicant used offensive language towards the manager (including saying “of course it’s my f**king business” and “this is all f**king bulls**t”), refused to obey the manager’s direction to stop swearing and leave the office, and used physical force to prevent the manager from closing the office door.

There was an internal investigation into the incident and the employee was subsequently dismissed and provided a payment in lieu of notice.

In the employee’s unfair-dismissal application, she argues that her conduct should be assessed in the context of the surrounding personal issues that had caused her to become overwhelmed during the meeting.

At the hearing, the commissioner found that the employee had been in a “rage” and had spoken in an aggressive manner that included extensive swearing.

It was also held that the employee had used physical force to prevent the manager closing the door and had also failed to obey reasonable and lawful directions to calm down or leave the office.

The tribunal concluded that the employee’s conduct was in breach of company policy and that the dismissal was fair in the circumstances.

Relevance of
 workplace culture

An employee’s conduct will be assessed in the context of the particular workplace environment in which the conduct occurs and the standards of behaviour that are expected in that workplace.

For that reason, employers who allow a workplace culture to develop in which swearing is tolerated or condoned will likely find it more difficult to dismiss an employee for swearing.

Recent cases illustrate that it is not uncommon for employees to seek to excuse their behaviour by arguing that swearing was part of the workplace culture.

For example, the employee in Jalea argued that her bad
language reflected a workplace culture in which swearing was tolerated. In response the employer was forced to accept that mild swearing had been tolerated in the workplace, although it successfully argued that the employee’s behaviour went significantly beyond the level that was tolerated.

Employers must be prepared for their workplace culture to come under scrutiny in these cases. In the case of Symes, considerable evidence was cited about the extent to which bad language was accepted in the workplace and the degree to which employees were disciplined for its use, and the employer conceded that it has a “robust workplace and that swearing does occur”.