Case study: Acceptance of swearing at work may make a summary dismissal unfair.
The Fair Work Commission (FWC) found that in a profane workplace, swearing at work and telling a manager to “get f-cked” did not warrant summary dismissal and the employee was awarded the maximum penalty (6 months’ pay) of $27,787.
In September 2016, the Precept Services operations manager was called to a meeting by the managing director and informed the company had investigated allegations of misconduct against him and was terminating his employment with immediate effect.
The FW Commissioner said the operations manager “was not given a clear indication about the reason for his dismissal, not even in the termination letter given to him at the time…….In addition, he was not provided with any advance notice or forewarning of the matters to be discussed in the termination meeting…”.
The operations manager told the Commission he only became aware of the nature of the complaints, and who made them, after lodging his unfair dismissal application, and that he hadn’t had an opportunity to have a support person present nor to respond to the allegations.
The Commissioner heard the dismissal had its origin in a heated exchange seven weeks’ earlier between the operations manager and the managing director’s wife, who was employed as the company’s national WHS manager.
Following a meeting between the WHS manager and the operations manager’s son, to discuss the latter’s performance as an apprentice electrician, the operations manager asked why he hadn’t been included, saying: “Your sneaky husband made that decision, did he?”
When the WHS manager asked what he meant by “sneaky”, he referred to a terse phone conversation between his own wife and the MD after she had queried the wages being paid her son. The MD had allegedly told her, “f-ck off, you do not have your facts right” before hanging up.
The Commission heard the operations manager then leant over the WHS manager’s desk and asked her, “how would you f-cking feel if I said get f-cked to you?”, and repeated the question before eventually leaving the office.
The operations manager claimed the MD often swore at other employees, including the WHS manager, and that he had also seen him punch and kick walls in the office.
The Commissioner stated that “The evidence establishes that the use of robust language and swearing at work was not unusual or uncommon, and that it was accepted and tolerated to a large extent, given the example set by the managing director.”
Although the Commissioner accepted that the employer did not have a dedicated HR specialist, and this “inevitably had an impact on the procedures involved in effecting [the] dismissal”, he concluded that the operations manager was unfairly dismissed for “swearing at work”.
The need for businesses to have appropriate policies and procedures in place and to follow them is critical. The Commissioner acknowledged that a lack of HR presence saw this business not following process. If you are unsure of how to handle a certain situation, speak to a trusted HR consultant prior to acting on what you may think is the right thing to do. Workplace legislation can be complicated, so get the right advice and save yourself some money and time.