by Katherine McDonald, solicitor
It is highly likely a lot of us can recall a time where we would have loved to have unleashed a tirade of expletives at specific people in the workplace in the heat of the moment.
Thankfully however, the lessons learned from reading The Art of Happiness by the Dalai Lama (highly recommended) have stopped me in my tracks most of the time!
A recent case in an ERA hearing shows how a culmination of work tensions led to swearing between a supervisor and employee, which eventually lead to an unfair dismissal of the employee.
When it comes to profanities at work it is a grey area and depends on mitigating factors such as the context of the situation, the nature of the workplace and the relationship between the parties involved.
Swearing at your boss intending to offend and when uncalled for, is obviously a completely different scenario to swearing in the course of banter.
There are all sorts of circumstances that need to be weighed up before dismissal for swearing can be considered fair. But regardless of whether the swearing constitutes serious misconduct, the employer still needs to follow a fair process when considering taking action.
Mr W was long-time employee at Affco Meats. His dismissal stemmed from an incident where an issue had arisen over staff being directed by a production supervisor to process non-perishable goods on a Saturday in conflict with an agreement that only perishable goods would be handled, and Mr W’s decision to leave early once the agreed work
and cleaning-up had been completed.
The supervisor stated: “What the f… are you doing? Get back on the Sammer.”
Mr W said: “For f…’s sake (name), what are you on about?”
However, the supervisor told the authority that Mr W said “Who the f… do you think you are?”
It was conceded that the swearing was in the heat of the moment.
Issues also arose around the process used by the company in its investigation, with Mr W telling the authority the company “refused to listen” to discussion on the agreement document and would not let him respond to allegations.
Mr W claimed he was unjustifiably dismissed. Affco told the hearing it had lost trust and confidence in Mr W.
What the ERA said
MR W was found to be unjustifiably dismissed from his employment. The employer did not follow a fair process and in the case of swearing, it was commonplace language in the freezing work environment for managers and employees alike.
On the issue of the language used, the ERA accepted Mr W’s evidence that it was the way people “normally expressed themselves in this work place”.
“It is well established that an employer will fail to justify a dismissal where communications do not appear to be greatly out of character with others apparently condoned by management in the workplace,” the ERA said, quoting from precedent.
Affco fell “woefully short in trying to justify the dismissal.” The ERA ordered reinstatement, reimbursement of lost wages, payment of damages and compensation for humiliation, loss of dignity and injury to feelings.