Even in workplaces where swear jars would generate small fortunes, foul and abusive language can still give rise to a fair dismissal.

Last month the Fair Work Commission upheld the September 2013 dismissal of an employee by a wharfing company following use of abusive swearing. The dismissed employee had taken offence to an employee laughing during  a crew meeting, and responded by, well, swearing like a wharfie.

The dismissed employee called his colleague various offensive names, to which the colleague responded (without swearing). However, an argument eventuated with both men swearing at each other and using bad language.  The employee was already on a final warning, and the Commission was informed of five previous instances of aggressive and inappropriate behaviour by the employee during his three years working for the employer (a number of which featured bad language).  The employee had denied swearing at his colleague during the employer's investigation, but admitted to using bad language during the Commission hearing.

The dismissed employee argued that bad language was common in his workplace. However, the employer lead evidence that the introduction of a new code of conduct in July 2013 had a positive impact on workplace culture. The Commission noted that the employee had attended training on the new code.

The Commission considered that the dismissal was fair, including because the employee had a history of behaving in an unacceptable manner towards others. The Commission also found that the employee's conduct fell well short of the behavioural standards expected in the workplace, as detailed in the employer's code of conduct.

A key aspect of the decision was the distinction drawn by the Commission between "everyday descriptive language" and swearing "aggressively and maliciously at another person", with the latter being particularly inappropriate.

The importance of the employer's code of conduct in finding that the dismissal was fair is a useful reminder of the benefits that flow from a comprehensive code of conduct regarding appropriate workplace behaviour. 

Rikihana v Mermaid Marine Vessel Operations Pty Ltd [2014] FWC 6314