This excellent article from ‘HR Investigator’ gives some interesting details around a recent decision from the FWC on this subject and is appended below for your attention and reflection….
A recent unfair dismissal case before the FWC has considered the circumstances when an employee’s workplace swearing behaviour would be acceptable and when it would ‘cross the line’.
In this case an employee with almost three years of service and a history of unacceptable conduct, swore at his Leading Hand.
In a win for the employer, despite having had a workplace culture where swearing was commonplace, the employee’s behaviour in this case was found not to be the ‘norm’.
Coupled with a thorough workplace investigation, this employer was confidently able to defend its disciplinary action before the FWC.
The Incident
In September 2013, during a regular morning meeting with his crew, a Leading Hand “giggled” when he read out one of the hazards submitted on a card by an employee from the work group.
The hazard card appeared to comically identify, “reflective strips on work shirts blinding forklift operators” as a workplace hazard.
In response, an employee from the work group (Mr Rikihana) reacted by loudly and aggressively by verbally abusing the Leading Hand, including saying to him:
You’re a d**kh**d. You’re supposed to be a leader of this group. You’re a c**k.
A Supervisor intervened when an argument then broke out between the two men.
The Dismissal
During the employer’s subsequent workplace investigation, Mr Rikihana denied he swore at the Leading Hand.
Despite the employee’s denials, the employer considered the allegations substantiated.
In all other aspects, the employer’s HR investigation was textbook and watertight.
With an opportunity to respond, notification of the reason for his dismissal and four previous incidents of workplace misconduct – including the issuing of a final warning, the most recent incident of workplace swearing was simply the nail in Mr Rikihana’s coffin.
The employee’s lack of honesty, coupled with a clear breach of the employer’s recently updated Code of Conduct, in the end, gave the employer multiple valid reasons for the employee’s dismissal.
The Fair Work Decision
The FWC was quick to point out the distinction between acceptable and unacceptable workplace swearing.
During the hearing the FWC accepted that the employer had made it abundantly clear that it took appropriate workplace interaction seriously, knowing that swearing was an ongoing issue.
In particular, the employer showed it was concerned with how employees “interacted with each other and with their supervisors”.
To improve culture, the employer had introduced a Code of Conduct in July 2013 – the month prior to this particular incident.
During the hearing, the FWC, highlighted a fundamental distinction about workplace swearing by pointing out that:
…there is a generally appreciated distinction between regularly using swear words as part of everyday descriptive language and swearing aggressively and maliciously at another person.
Unfortunately for Mr Rikihana, the FWC preferred the evidence of the employer and agreed that the employee’s behavior was not acceptable “in the context of the culture of this particular workplace.”
Lessons for Employers
Swearing in many workplaces is commonplace.
However an important distinction can be made about swearing that is part of an everyday robust workplace and swearing that is targeted at another with a malicious intent.
This employer was also able to rely on a newly formed workplace Code of Conduct to show that it had ‘put its house in order’ and made clear to employees the consequences of inappropriate conduct such as swearing.
The employer’s new approach enabled it to confidently defend its decision to dismiss Mr Rikihana, despite evidence that workplace swearing had at one time been commonplace.
A swift and decisive workplace investigation by the employer helped it answer with a resounding “no” the question as to whether calling your boss a d**kh**d is okay.
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