With the recent high-profile case of an employee sacked for calling her boss a "complete d-ck", employers and employees alike are now wondering what the rules are. Hedy Cray and Laura Hillman avert their eyes from some appalling language and explain when and how swearing can be a disciplinary issue.
Ordinarily there are some things you should not say to your boss.
However, in recent times you could be forgiven for thinking the 2015 Australian workplace has become too robust. While we clearly have come a long way from the 1950s cases on insubordination, recent Fair Work Commission cases highlight just how far the boundaries can be pushed, the latest being Louise Nesbitt v Dragon Mountain Gold Limited  FWC 779.
Normal workplace banter or abuse?
There is no doubt swearing has become commonplace in our workplaces. However determining how much is too much and when does it move from everyday language and insubordination can be difficult.
For example, swearing at your managing director in a phone conversation to say: "You dribble sh-t, you always dribble f-cking sh-t", was found to require discipline but not termination in February 2015 in Smith v Aussie Waste Management Pty Ltd  FWC 1044.
Similarly, a senior employee who sent an email to his colleagues referring to his boss engaging in "excessive masturbation" in Cronin v Choice Homes (Qld) Pty Ltd  FWC 10240, was found not to justify dismissal. Despite the fact that the CEO felt it depicted him as a "w-nker" and the Commission's finding that it was "ill-considered and personally offensive" to the CEO, it was found to be a joke and consistent with the culture and communication of the senior team.
However, in the decision of Rikihana v Mermaid Marine Vessel Operations Pty Ltd  FWC 6314, the Commission found that even wharfies can cross the line and swear too much. Calling your employer a "c-ck" and "d-ckhead", against a background of a repeated disciplinary pattern for very colourful language did justify termination. While the language would make most blush, in light of the culture of the workplace the Commission sought to draw a distinction between regularly using swear words that become part of everyday descriptive language and swearing aggressively or maliciously at another person.
While this would appear to be sensible, it does not always assist in the interpretation of some of the recent cases. Equally the nature and extent of the pattern of behaviour in Rikihana highlights the difficulties of managing the issue.
A complete summary dismissal for a sweary text
Following on from the decisions of Smith and Cronin above, another recent decision has given further guidance on regrettable communications with your boss, including those accidentally sent.
In Louise Nesbitt v Dragon Mountain Gold Limited  FWC 779, the Commission found that Dragon Mountain's dismissal of Ms Nesbitt for accidentally sending a text message calling her supervisor a "complete d-ck" was not unfair. Her application for unfair dismissal was dismissed.
Ms Nesbitt was one of two employees employed by Dragon Mountain. Ms Nesbitt was an office administrator/bookkeeper and the other employee was her supervisor, Managing Director and Chairman, Mr Gardner.
Around May 2013, Dragon Mountain relocated its offices. Following the office relocation, Ms Nesbitt and Mr Gardner's working relationship deteriorated.
As part of refurbishing the new office, Ms Nesbitt engaged her daughter's boyfriend to perform plumbing work. In January 2014, prior to the commencement of the plumbing work, Ms Nesbitt sent a text message, intended for the plumber, to Mr Gardner. The text message said:
"Now remember ... [Mr Gardner] is a complete d-ck...we know this already so please try your best not to tell him that regardless of how much you might feel the need"
Realising her mistake, Ms Nesbitt quickly sent a subsequent message to Mr Gardner asking him to delete the previous message without reading and that she was sorry. Ms Nesbitt then sent a further text message to Mr Gardner explaining that the message did not reflect how she felt but was rather her sense of humour which involved exaggeration.
The Board terminated Ms Nesbitt's employment for gross misconduct.
Fair Work Commission finds Ms Nesbitt's summary dismissal was reasonable
Ms Nesbitt made an unfair dismissal application.
During the application much was made of the word "complete" in the text message as a descriptor of Mr Gardner. Ms Nesbitt submitted that the Fair Work Commission should consider the text message in the context of the intended recipient, the young plumber saying that young persons use the word "complete" "in front of every second word".
Commissioner Cloghan did not accept these submissions. Rather, in dismissing Ms Nesbitt's application, Commissioner Cloghan found:
- Ms Nesbitt was sharing her assessment of Mr Gardner with the plumber, who was her daughter's boyfriend;
- given the plumber had little prior contact with Ms Nesbitt, the text message reflected that Ms Nesbitt was the source of the opinion, an opinion that the plumber agreed with;
- calling a person a "d-ck" is derogatory and using the word "complete" before this conveys the message that the person is "without exception, an idiot or fool – they are nothing less than a "d-ck"";
- calling Mr Gardner a "d-ck" was not merely a "light hearted insult" as Ms Nesbitt submitted, but "hurtful and unpleasant";
- while trust and confidence is essential in any employment relationship, that Dragon Mountain had only two employees meant that this was an "absolute necessity".
As a result, Commissioner Cloghan found that Dragon Mountain's belief that Ms Nesbitt's conduct was sufficiently serious to justify summary dismissal was reasonable and therefore Ms Nesbitt was not unfairly dismissed.
Dealing with employees' words that can undermine your business
As reflected in this case, what an employee may allege is "light-hearted" and "a joke" can result in serious impacts for a business. While Ms Nesbitt's text message was intended for her daughter's boyfriend, the plumber was a contractor performing work. Sending derogatory and offensive communications to third parties can damage a business' reputation and that of its employees/management.
Even if offensive communications remain internal, such communications can undermine and negatively impact working relationships between colleagues and managers, destroy trust and confidence and overall contribute to an unhealthy workplace culture.
Each case can be different. However, it remains important that employees are still provided with procedural fairness. Having sound policies that clearly outline an employer's expectations regarding employee conduct, including swearing, and the disciplinary process to follow if allegations are raised, can greatly support managers address these issues in a reasonable and lawful manner.
When addressing allegations of swearing/inappropriate conduct and potential disciplinary action, it is important to consider:
- the words used and how they were delivered (tone, volume etc.);
- who was the actual audience (regardless of whether intended or unintended and was it private or public);
- the context of the incident and the employee's role and seniority;
- the culture of the workplace (perceived and actual);
- what do your workplace policies provide;
- are there any mitigating factors (eg. was the conduct out of character, does the employee have an otherwise unblemished work record, contrition showed).
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.