Last issue we appended an article from HR Investigator which reported on a recent case where an employee swore at a member of the management team…….. but what happens when the boot is on the other foot and the employer swears at the employee? What are the potential ramifications for the employer if any? In this follow up article which also draws on recent case law HR Investigator clearly illustrates the issues……… 
We all know the modern workplace can be a stressful arena at times.
Patience can be tested. Tempers can fray.
But what about when emotions boil over if it’s the boss dishing out the abuse?
In a recent FWC unfair dismissal case the FWC was called on to consider whether a boss telling a worker to “f*** off” was okay.
Background
The employee in question (Marianne Reid) had been employed by itac2 Pty Ltd t/as itac2 from 1 March 2010 until 10 February 2014 in an administrative position on 3 day a week permanent part time basis.
In July 2011, following discussions with the employee’s boss (Mr Gamble), she commenced working the other two-days of the working week for the employer as a Marketing Consultant.
Some months later (October 2011) an incident occurred where the Mr Gamble telephoned the employee out of hours.
The employee later gave evidence to the FWC that Mr Gamble had ‘ordered’ her to meet him at the office (a direction which Mr Gamble subsequently disputed).
Evidence before the FWC indicated the relationship became strained at times following that incident.
Employment comes to an end
On the 11th of February 2014 a verbal exchange took place between Mr Gamble and the employee about the prioritisation of issues for an afternoon meeting.
During the exchange Mr Gamble told the employee to:
F*** off”
When the employee took exception to the profanity, Mr Gamble told her:
Just f*** off and get out”
The employee then left the workplace.
The next day (12 February) the employee received a voicemail from Mr Gamble asking her to return the office keys, provide him the MYOB password and to “finalise things”.
The employee attended the workplace, completed the handover and left the building.
Unfair dismissal claim
The employee subsequently lodged an unfair dismissal claim with the Fair Work Commission.
The employer opposed the claim by asserting that the employee had brought her employment to an end by resigning.
The employer claimed the termination of her employment could not be a ‘dismissal’ because it was not at the employer’s initiative.
If the employer’s argument were accepted, the unfair dismissal claim would go no further because the FWC would not have jurisdiction to consider the merits employee’s claim.
What happened at the FWC hearing?
Not unexpectedly, the FWC heard conflicting evidence by Mr Gamble and the employee at the FWC hearing.
As to whether the employee resigned or was sacked by the employer, the FWC looked at the circumstances surrounding the events leading up to, (and including) the discussions and interaction on 11 and 12 February 2014.
No dispute about the F-word
The FWC observed that there was no dispute that Mr Gamble had told the employee to ‘F*** off’ on 11 February 2014.
The FWC accepted that Mr Gamble also regretted using such language.
Effect of the F-word
Unfortunately for Mr Gamble, the FWC had the following to say about the effect of his unseemly language:
On any objective analysis, where an employer tells an employee to ‘F*** off’ and then does not take any action to explain or withdraw that expression, it constitutes a direction to the employee to leave the workplace.
As such, it constituted a constructive dismissal of the applicant.
… the actions of Mr Gamble subsequent to this incident confirm that he had intended to dismiss her at the time and he took no step/s to disavow her of that belief.”
Dismissal finding = an unfair dismissal
During the hearing Mr Gamble accepted that he had not followed the Small Business Fair Dismissal Code or procedural fairness under the FW Act.
In consequence, Mr Gamble conceded that if the FWC determined that the employee had been dismissed (by him), then it would follow her dismissal was unfair.
Unfortunately for Mr Gamble, that is just what the FWC determined.
- That is, by way of his actions, Mr Gamble had dismissed the employee and that dismissal was unfair.
In arriving at its finding that the employee had been constructively dismissed by Mr Gamble (rather than her resigning), the FWC also took account that:
- At no time, on the day after the verbal exchange in question, did Mr Gamble seek to initiate a discussion with employee to clarify what had happened
- If Mr Gamble really believed that the employee had resigned, there was no attempt by him to confirm with her that resignation is what she had intended
Compensation rather than reinstatement
Following its determination that an unfair dismissal had occurred, rather than reinstating her to the workplace, the FWC ordered the employer to pay the sacked employee $4,800.00 in compensation.
Lessons for Employers
A boss or manager swearing at a worker can leave the employer open to a claim that it constructively (and unfairly) dismissed the employee.
Trying to undo the damage after it’s done is nowhere near HR best practice.
If in the heat of the moment swear words are regrettably directed at an employee, the offending boss or manager should immediately seek to explain (and hopefully, apologise) or make a clear withdrawal of the offending words.
The case in question is yet again another example of the problems caused by an employer due to workplace swearing.
Unfortunately, this headache was one of the boss’s own making.
Not sure of your obligations? Call us to discuss.