Swearing in the workplace happens. It happens when workers get frustrated, it happens when workers accidentally hurt themselves and, occasionally, it happens when workers get angry with others.
When it comes to swearing, there is no blanket rule. We know from criminal cases that not all public instances of swearing constitute offensive conduct in breach of the law. Equally, recent Fair Work Commission cases tell us that not all instances of swearing justify termination.
Whether swearing in the workplace warrants a serious disciplinary sanction or not usually depends upon two critical questions:
- What is the culture of the relevant workplace?
- Is the swearing merely being used to add more ‘colour’ to a statement or is it instead part of a verbal attack against another?
Culture of the workplace
Some workplaces are more likely to be exposed to swearing than others. Factories, transport companies and mine sites are all places where the ‘f-bomb’ is likely to be dropped on a frequent basis. On the other hand, schools and hospitals are far less likely to see this type of language used. Employers accordingly need to set their profanity radar against the backdrop of their respective industries.
This is a point highlighted in the Fair Work Commission decision of Smith v Aussie Waste Management Pty Ltd  FWC 1044,
where an employee (Mr Smith) was sacked for swearing at his supervisor.
The Commission found that Mr Smith told the supervisor over the phone: “you dribble shit, you always dribble fucking shit”.
The comments were made during a series of two phone calls where Mr Smith and his supervisor were arguing about whether Mr Smith’s rubbish truck was faulty.
While the Commission acknowledged the conduct was unacceptable, the nature of Mr Smith’s industry and the fact the swearing occurred in a one-on-one conversation convinced the Commission that the employee should not have been sacked for this instance of conduct.
The Commission particularly noted that the swearing had not formed part of a pattern of conduct by Mr Smith designed at undermining his supervisor. Furthermore, the Commission found: “It is not uncommon for bad language to be used in the workplace in this industry or other similar industries.”
Another factor that convinced the Commission Mr Smith’s sacking was harsh was that the swearing didn’t form part of some physical or verbally violent attack on his supervisor.
Where swearing does form part of an attack on another person, it is more likely to provide a valid reason to dismiss an employee. This is demonstrated in the recent Fair Work Commission case of Horner v Kailis Bros Pty Ltd  FWC 145
In this case, Mr Horner directed a barrage of expletives at his supervisor, telling him to “f… off” and “f… you”. These phrases were repeated on several occasions, even as the supervisor asked the employee to stop swearing.
Swearing was quite common in Mr Horner’s workplace, with the Commission accepting that there was a culture of swearing, that managers often swore and that disciplinary action was rarely taken against people who swore.
However, the Commission considered this to be more than just swearing.
Deputy president Gooley found as follows:
“Despite the culture of swearing in the workplace, I find that Mr Horner’s language directed at Mr Stanton was abusive. I do not accept that it was only when he told Mr Horner to piss off that he stepped over the mark. The entire exchange was abusive. This was not a case where the ‘f’ word was simply used as an adjective. It was used aggressively. I agree with Mr Stanton that no-one should expect to be spoke to like Mr Horner spoke to him.”
Having made those findings, the deputy president determined the dismissal of Mr Horner was not unfair.
How do you know when someone has gone too far?
It is impossible to draw a definite line on which instances of swearing automatically justify dismissal.
What the above cases teach us are that there are aggravating factors that make some instances of swearing worse. These include swearing:
- as part of a verbal or physical attack on another employee
- as part of a pattern of conduct attempting to undermine another employee, and
- repeatedly or in a particularly obscene manner – for instance, calling someone a “c---“ is rarely going to be considered acceptable.
On the other hand, where employees use swear words as adjectives to make their statements more colourful, where employees swear in frustration to themselves or where employee swear in workplaces that generally tolerate swearing, dismissal for swearing alone might be too harsh a sanction that leads to a successful unfair dismissal claim.
As always, if there is any issue within your business that might give rise to a claim, early intervention is the best protection. Feel free to contact us on 1300 565 846 if this raises any questions.
This article was written by Luis Izzo, a lawyer and a director of Australian Business Lawyers & Advisors (ABLA) for Workplace Info