Swearing in the workplace: A sackable offence?

April 17, 2017

 

While it may be argued that swearing has become more acceptable in general use,  swearing in the workplace may not be.

It is important to note that swearing at work may constitute bullying, harassment or discrimination depending on the circumstances.

What do employers need to consider when deciding if they should or are able to take disciplinary action regarding this are:

  • The culture of the workplace, it might be argued that swearing could be more common and or acceptable in a factory or a mine site than in a corporate office and therefore this can will affect the expectations of the employees.
  • The nature of the offence insofar as what was said and to who.
  • The level of offence taken by those subject to the swearing, was it directed at a person or persons or as a general vent.
  • Was it part of a pattern of behaviour
  • Is there a policy or section of a Code of Conduct that outlaws swearing in the workplace?
  • Your policies and your Code of Conduct are the rules, the law in your organisation, they must clearly set out the behavioural expectations for all employees. Do you have them in place?
  • Has swearing been allowed or not in the past, history is very important as a consistent attitude must be shown, one rule for all, all the time.
  • It is equally important that employees found breaching any rules against swearing at work are also treated with consistency.
  • Has there been training conducted outlining the behavioural expectations.
  • Is there a system of recorded warning for breaches?
  • The history of the alleged wrong doer is important, in this a one off, is the employee general well behaved and productive.
  • Does the punishment fit the crime?

The Fair Work Commission has in the past found that an employer was justified in dismissing a worker who swore at his supervisor on the basis that he had been previously warned in writing not to use inappropriate language at work. But the Commission went on to say it would not have found in favour of the employer if there had been evidence other employees had acted in a similar manner with less or no disciplinary action.

In another case, the Commission found in favour of an employee who was sacked for sending an abusive text message to a colleague during protected industrial action and ordered reinstatement. The Commission found that while there was a valid reason to terminate the employee, it was disproportionate insofar as it was inconsistent with the approach taken in other similar incidents. Evidence before the Commission suggested there was a culture of workplace swearing, and that previous instances had not been dealt with by dismissal.

This is general information only and does not constitute legal or any other form of advice. If you would like assistance with a workplace matter such as this, or if you require the services of an independent investigator, contact Phil O’Toole or Phil O’Brien at Centium. Centium has conducted many workplace and employment related investigations and can share lessons learnt and good practices observed across industry.

The author of this blog is Phil O’Brien, Head of Investigations at Centium. He is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

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