In a recent decision by the Fair Work Commission, Deputy
President Wells found against the company that summarily dismissed
an employee for abusing the managing director of the company. The
company was an SME and the managing director and the garbage truck
driver were having a telephone conversation which got heated. In
the course of that conversation, the employee said to the managing
"You dribble s#*t, you always dribble f#*$ing
The company proceeded to terminate the employee without having a
meeting with the worker. That was their primary mistake in dealing
with this matter. Had they met with the worker and given the worker
an opportunity to explain why he had spoken to the managing
director in such a fashion and furthermore, why they should not
terminate him, the company may have been in a better position to
defend their decision to summarily dismiss the worker.
Deputy President Wells went further than that and found other
reasons why the employee should not be terminated summarily for
Firstly, it was important in this case that the employee had not
made that statement in front of other employees, thereby
undermining the authority of management. Had the statement been
made in front of other employees, the finding may have been
Secondly, there was recognition that some workplaces in 2015 are
not as averse to swearing as they once may have been in the 1940s.
That was a tacit recognition that swearing is tolerated in common
conversation in a way that it may have once been.
If this had been a school rather than a garbage business, it may
have been different.
In a decision of the Commission in March 2013 involving a sales
executive from Toyota, Senior Deputy President Hamberger
found that the company's decision to terminate the sales
executive similarly was justifiable because the aggressive
conversation (which included the question to the client
"have you ordered that f#*$ing car yet?") was
directed towards the client and not just a member of staff.
Furthermore, conversation occurred in an open area of the business
and the conversation threatened a relationship with one of the
company's major clients.
Accordingly, swearing in a workplace even in an angry fashion,
is not immediate grounds for termination. The context in which it
occurred is critical.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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