Australia: Swearing in the workplace: the legal position

The recent Full Bench decision of the Fair Work Commission (FWC) in Illawarra Coal Holdings Pty Ltd T/A South32 v Matthew Gosek [2018] FWCFB 749 (Illawarra Coal), which garnered extensive media coverage, has once again put the spotlight on the issue of swearing by employees.

Swearing in the workplace is more complex than the days of the old school yard, where the use of expletives could lead to detention or worse, or at the family dinner table, where the prospect, real or merely threatened, of having one's mouth washed out with soap loomed large.

Formative experiences notwithstanding, as with many other matters of employee conduct, employers need to be careful not to play "moral guardian".

Unless an employee is working with children, involved in broadcasting or engaged in a sensitive environment the mere act of swearing itself is unlikely to provide a sound basis for termination of employment.

Even political leaders are not as constrained as they once were when it comes to the public use of expletives. In a recent interview with GQ magazine, Labor leader Bill Shorten exclaimed "What the f***?". You don't have to go too far back to a time when such language from a Prime Ministerial aspirant would have been unthinkable or even scandalous. Now it barely causes a ripple. Even the Chief Executive Officer of a major mining company was recently quoted in the Australian Financial Review as saying that employees stuck in the past could either "fit in or f*** off". Changing societal mores will inform the approach taken by the courts and employment tribunals.

When confronted with a situation involving swearing, employers need to embark on a task somewhat similar to those who classify content for film or TV; that is, to carefully examine the precise language used, the context of the language and the way in which the language is used.

SWEARING AS THREATS OR ABUSE

The FWC draws a distinction between swearing of itself (as an adjective or exclamation) and the deployment of expletives as part of abusive, or even more seriously, threatening behaviour.

As Commissioner Williams observed in Rikihana v Mermaid Marine Operations Pty Ltd [2014] FWC 6314:

"There is a generally appreciated distinction between regularly using swear words as part of everyday descriptive language and swearing aggressively and maliciously at another person."

In the first instance decision of Illawarra Coal, Commissioner Riordan ordered the reinstatement of an employee who had directed epithets such as "f*****g dog", "c***" and "dog c***" towards colleagues.

On appeal, the majority of the Full Bench of the FWC found that Commissioner Riordan:

"... by focusing on the language and not the totality of the conduct ...downplayed the character of the conduct. The problem was not that Mr Gosek swore at this (sic) work mates. The conduct involved an expletive filled tirade which included threats directed at employees because they participated in an investigation. While the evidence supported a finding that the term "dog" was used in other contexts in this workplace, in this context however, as was acknowledged by Mr Gosek, it was used to describe people that he believed had ratted on their mates. Mr Gosek believed that they had lied. "

A similar analysis was adopted in the earlier case of Horner v Kailis Bros Pty Ltd. [2016] FWC 145 in which the FWC held that the dismissal of an employee who had directed expletives at his supervisor was not unfair.

The applicant in that case, Mr Horner, had repeatedly used the "f***" word (and variations thereof) in an "aggressive fashion". He had been previously warned about his use of expletives. Deputy President Gooley held:

"I do not accept Mr Horner's justification for the language he directed at Mr Stanton. 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. Mr Horner's apology does not alter his conduct. "

As with other forms of misconduct, however, the severity of the conduct will be considered. Not all abusive swearing will provide a sounds basis for termination of employment. An illustration of this is the decision of Smith v Aussie Waste Management Pty Ltd [2015] FWC 1044 in which the FWC held that the dismissal of an employee who said to his supervisor, "you dribble s***, you always dribble f****** s****"", was unfair.

In so deciding, Deputy President Wells held:

"Whilst Mr Smith's conduct should not be tolerated in the workplace, in the context of a one-on-one heated discussion with his Manager without anyone else present, I have concluded that the conduct is not sufficiently insubordinate to establish a valid reason for dismissal. The conduct did, however, warrant a form of disciplinary action, other than dismissal."

A CULTURE OF SWEARING IN THE WORKPLACE

One aspect of Commissioner Riordan's first instance decision in Illawarra Coal that was upheld by the Full Bench of the FWC was a consideration of whether there was a culture of swearing in the workplace.

As the Full Bench observed:

"We do not accept that the Commissioner had regard to an irrelevant consideration when he found that this type of language was commonly used in the mine and there was no evidence that any employee had been disciplined for the use of such language. In determining whether there was a valid reason for the dismissal, this was a relevant consideration."
While the prevalence of swearing or a permissive culture of swearing in the workplace is a relevant consideration, the authorities canvassed above establish that this alone won't preclude a valid reason for termination where the swearing under consideration is threatening or abusive in nature.

It might, however, provide the basis for a successful defence where the swearing has been used merely as an adjective or exclamation in a workplace where other employees swear openly and freely without being disciplined.

SWEARING AS ADJECTIVE OR EXCLAMATION

In contrast to the use of expletives to threaten or abuse, swearing in frustration at an inanimate object that has failed to function as expected (such as computer or a car, much like a profane version of Basil Fawlty in "Fawlty Towers") or when used as an adjective in descriptions of events is, as a general proposition, far less likely to provide a sound basis for termination of employment. That said, as with almost all unfair dismissal matters, it will depend upon the circumstances of the case.

CONSIDERATIONS FOR EMPLOYERS

When considering whether disciplinary action should be taken against an employee who is using offensive language, and if so the sanction to be imposed, it is important for employers to take account of the following factors:

the way in which the language was deployed: was it merely descriptive or an expression of frustration or was it deployed abusively or, even more seriously, to intimidate or threaten?;

  • the particular words that were used – even in these more permissive times there is a scale of expletive offensiveness;
  • the volume and tone of the words used;
  • the specific context and circumstances in which the words were used;
  • the nature of the workplace and the work being undertaken (particularly if it is "customer-facing"); and
  • whether swearing is commonplace in the workplace, including any policies/codes addressing swearing and the consistent enforcement of such policies through disciplinary action (where warranted).

For further information please contact:

Michael Byrnes, Partner
Phone: + 61 2 9233 5544
Email: mjb@swaab.com.au

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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