Australia: Offensive language within the workplace: When does it cross the line?

Profanities in the workplace; acceptable always, never, or only in times of deep exasperation? Does swearing in the workplace give an employer enough grounds to terminate an employee? As an employment lawyer it's relatively common for me to hear of circumstances where employees have been reprimanded for their choice of language within the workplace - although as with all legal matters, every situation is different and must be approached as such.

An employee who swears will not always give an employer grounds for termination. With this said, swearing coupled with the additional ingredients of intimidating, aggressive or threatening conduct or actions towards another employee may be a risk to the health and safety of that employee, or indeed constitute a breach of either workplace harassment policies or a code of conduct.

These types of scenarios will see employers better placed to defend a decision surrounding the dismissal of an offending employee.

Using abusive language towards a manager

In the case of Aiono-Yandall v Linfox [2014] FWC 1649, Mr Aiono-Yandall ('Mr AY') was employed as a full-time store person. Linfox management held a toolbox meeting with all warehouse staff to discuss the proper use of a forklift, and Mr AY was seen operating the forklift contrary to management instruction.

When Mr AY's Supervisor tried to discuss the issue, Mr AY became abusive, shouting and yelling "This is f -ing bull---. This is f-ing crap. F-- You!". When he left the meeting room he slammed the door so hard that he cracked the wall, before throwing his water bottle at the wall causing further damage. Mr AY then left the work premises - and was certified unfit for work by his doctor for over month.

An investigation was conducted on Mr AY's return to work, and a disciplinary meeting was subsequently held to discuss the allegations of misconduct:

  • Failure to adhere to a lawful and reasonable management instruction;
  • Engaging in threatening and abusive behaviour towards members of management; and
  • Wilfully damaging company property.

Mr AY admitted that he was aware of the instruction regarding the use of the high reach forklift but denied that he had failed to follow the instruction. He admitted that he had yelled, sworn and had become offensive during the meeting, but claimed that he was justified in doing so, as swearing was commonplace throughout the business.

Linfox terminated Mr AY's employment summarily, taking into account a final written warning that it had issued to Mr AY in November 2012 for similar conduct.

The Commission did not accept that "...the workforce commonly communicated in the tone and manner in which [Mr AY] interacted with his supervisors at the meeting in the boardroom...". Further,

"[Mr AY's] conduct on 11 June 2013 was of a serious kind. [Mr AY] had been previously warned about his conduct and the manner of his communications within the workplace, particularly to supervisors. [Mr AY's] conduct warranted dismissal because it undermined the principles of cooperation and mutual respect necessary for a productive workplace. It was also conduct that posed a potential safety risk, to [Mr AY] personally as well as others."

Using abusive language towards a colleague

In the case of Bashir v Alex Perry [2019] FWC 2041, iconic Australian fashion designer Alex Perry successfully defended an unfair dismissal claim brought by Mr Bashir, a Custom-Made Pattern Maker/Sample Machinist.

Mr Bashir was a longstanding employee with over 5 years of service, but his employment record was far from exemplary:

  • In May 2016, a colleague made a comment about Mr Bashir's workmanship. A heated argument followed, and turned into a screaming match where Mr Bashir made threats of sexual assault and said "Hit me, hit me, do it, I'll f - ing sue you!"
  • In early September 2018, Mr Bashir said he would "f -ing slap" a colleague after the Production Manager asked him to take extra care when working on a garment; and

A few days following the above incident, Mr Bashir raised his voice at a colleague and manager when the manager tried to discuss the poor-quality samples he had created for the Spring/Summer collection.
Mr Bashir became aggressive, hitting the sample rack, pointing his finger and getting into the personal space of the manager.

When his manager handed him a written warning he scrunched it up and threw it across the room, saying "I'm not signing this. Who are you? You are nothing!".

At a meeting to discuss his conduct, Mr Bashir failed to provide any reasonable justification for his behaviour, nor did he apologise or show any contrition.

He was terminated for serious misconduct on grounds that his conduct posed a significant and imminent risk to the health and safety of staff.

The Commission was satisfied that the serious misconduct alleged against Mr Bashir was proven on the balance of probabilities. "On at least three occasions, [Mr Bashir] used offensive, aggressive, threatening and intimidating language towards female staff and in addition was rude, offensive and dismissive of his manager", all of which constituted valid reasons for termination.

Key takeaway

What these two cases demonstrate is that a one-off swear word which slips off the lips (especially if it is just used as a linguistic intensifier and not personally directed) will not justify termination. With this said, personally-directed abuse combined with threats of physical violence are quite likely to.

It is important for employers to have well-defined policies which outline the standards of conduct expected of employees within the workplace. Similarly, in the event of a breach, disciplinary action should be taken and applied consistently across the business.

If swearing becomes part and parcel of workplace culture, it will likely be difficult to discipline an individual employee for swearing, as the culture would've been viewed as an accepted standard of behaviour, and it would be unfair to pick on one employee without something more than the accepted standard of behaviour.

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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