A recent decision by the Fair Work Commission (FWC) has some people asking whether the standards of behaviour expected of employees are changing. In Smith v Aussie Waste Management , the FWC found that swearing at a manager didn't warrant dismissal. We consider whether this is reflective of a wider trend in modern workplaces in which expectations are dropping.
Smith v Aussie Waste Management
In Smith v Aussie Waste Management, a garbage truck driver swore at his manager, saying "you dribble sh#t, you always dribble f#&king sh#t". The employer dismissed the truck driver for this conduct. Deputy President Wells, who presided over the matter, accepted that the garbage truck driver swore at his manager, but overturned the employer's decision. She found that while this type of conduct shouldn't be tolerated, it was not "sufficiently insubordinate" to justify dismissal.
In making her decision, DP Wells considered that:
- the type of language was not uncommon in the workplace
- the conversation was not overheard by other employees, and
- the worker didn't intend to undermine his manager's authority in the workplace.
In her decision, DP Wells also indicated that attitudes towards swearing have changed over time:
"[t]here is no doubt that workplaces are more robust in 2015, as they relate to the use of swearing, than they were in the 1940s. Further, I would not consider it uncommon for bad language to be used in the workplace in this or other similar industries."
What are the implications of the decision?
This decision is important in that it signals that there has been a shift in what is considered to be acceptable conduct in the workplace. However, this shift doesn't mean that employees can now act poorly (by swearing or otherwise) without consequences. The generally accepted position is that bad language alone, or other single acts of misconduct, don't warrant dismissal: something more is needed.
Other swearing cases
A number of cases have dealt with the issue of swearing in the workplace. In one example, Mr Roderick Macdougall v SCT Pty Limited T/A Sydney City Toyota , a car sales executive had his employment terminated for swearing at a potential customer. In this case, the FWC emphasised the fact that the conduct of the employee could potentially have caused financial and reputational damage to the employer. For this reason, the conduct was considered to be more serious than swearing at a senior employer in a private conversation – and the dismissal was upheld.
In another case, Rikihana v Mermaid Marine Vessel Operations Pty Ltd , the dismissal of a wharf worker for swearing was also upheld. The worker had repeatedly engaged in unjustified swearing, which was described as "contemptuous and aggressive". Although it was agreed that traditionally, swearing was part of wharf workers' everyday vocabulary, the FWC viewed this accepted, everyday behaviour as distinct from swearing aggressively and maliciously at another person.
In light of this, the FWC decided dismissal was the appropriate penalty. Significantly, in this case, the employer had recently attempted to improve the workplace culture by implementing a new code of conduct aimed at improving the standard of communication between workers.
This factor strengthened the employer's case, as the FWC considered the employer had made a clear effort to improve workplace interaction and deter aggressive swearing.
The impact of workplace culture on appropriate standards of behaviour was also considered in Paul Cronin v Choice Homes (Qld) Pty Ltd . In this case, a financial controller "replied all" to a company-wide email announcement and insinuated, in his email, that the CEO was "a wanker".
The FWC accepted that the email was offensive. However, it found that overall the conduct didn't justify dismissal. The FWC said the employer tolerated, and sometimes encouraged, similar types of conduct and that in this workplace it was acceptable to send emails that "tick every box in the spectrum of highly offensive material including hard core pornography, sexism and racism".
The FWC commented that to uphold the dismissal of the financial controller was inappropriate as it would support an employer who "has dealt disproportionately with employees who have engaged in much more serious misconduct".
What can you learn from these decisions?
Workplaces today are undoubtedly more tolerant of swearing than they used to be, but this shift in standards does not apply to every industry or organisation. These cases illustrate that the question of whether swearing or other single acts of misconduct are valid reasons for dismissal will depend on the circumstances, and in particular, on the relevant workplace culture and context.
Employers must think carefully before dismissing employees for acting inappropriately at work. Some questions employers should consider before deciding to dismiss an employee include:
- Has the conduct caused us reputational or financial damage?
- Do we accept the conduct as part of our workplace culture?
- If the conduct is not appropriate, how have we dealt with it in the past?
- Do the worker's actions mean they have acted insubordinately toward senior employees?