Swear­ing at a boss, is it always a sack­able offence?

In Brief

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 director:-

“You drib­ble s#*t, you always drib­ble f#*$ing s#*t”.

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 such conduct. 

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 different.

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 the mod­ern work­place, in a way that it may not 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.