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Can swearing constitute serious misconduct?

Monday, 23rd February 2015, by Loran McDougall

In today's Workplace Bulletin:
  • Case Law: Can swearing constitute serious misconduct?
Dear Reader,

If an employee engages in misconduct so serious that you should not have to put up with employing them going forward, you may treat it as serious misconduct and end the employee’s employment immediately, i.e. summarily.
Serious misconduct includes:
  • theft;
  • fraud;
  • dishonesty;
  • assault;
  • intoxication to the point that the employee cannot perform their work; and
  • failing or refusing to follow a reasonable and lawful direction that is consistent with the employment contract.
That said, you must be cautious about summarily dismissing an employee for serious misconduct, as determining what constitutes serious misconduct and justifies summary dismissal is not always simple.
And if a dismissal is unfair, an employee can, under the Fair Work Act 2009 (Cth), apply to the Fair Work Commission (FWC) for an order that you reinstate or compensate them.
A dismissal will be unfair if, among other things, there was no valid reason for the dismissal or if the employee isn’t properly notified or given a chance to respond.
In today’s bulletin, Charles Power elaborates with a recent case law.
Until next time,
Jessica Oldfield
Loran McDougall
Editor
Workplace Bulletin
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When it comes to dismissing an employee, knowing the
correct procedure is essential.

Case Law: Can swearing constitute serious 

misconduct?

by Charles Power
Editor-in-Chief, Employment Law Practical Handbook
Swearing at the boss is unlikely to provide a reason for fair dismissal if no-one overhears it and you don’t give the employee a chance to explain their conduct. This is the principle arising from a recent FWC decision in Smith v Aussie Waste Management Pty Ltd (2015).

A truck driver with 2 years’ service was summarily dismissed for swearing at the managing director. The MD had noticed through the GPS location of the employee’s truck that the employee was slower than usual on his round. The MD sent the employee a text message informing him of this. The employee called the MD on his mobile and had a heated exchange, during which he said “You dribble s--t, you always dribble f--g s--t”, and hung up.

The MD rang the employee back and told him he would not be spoken to like that and that he could not hang up on him. The MD then terminated the employee’s employment.

The FWC observed that the employee’s conduct should not be tolerated in the workplace and warranted a warning or counselling. However, the FWC ruled that the employee’s conduct did not constitute serious misconduct and that dismissal for the conduct was unfair.

This conclusion appears to be based on:
  • the fact that no third party observed the discussion and therefore the conversation did not undermine the MD’s authority in the workplace;
  • the employee having said the things he did when he was angry – the FWC noted the observation of an English court in a 1937 case, that “A single outbreak of bad temper, accompanied with regrettable language, is usually an insufficient ground for dismissal”;
  • the fact that the MD did not meet with the employee to discuss his conduct before dismissing him and therefore the employee did not have the opportunity to explain his conduct; and
  • workplaces being more robust in 2015, as they relate to swearing, than they were in previous decades – the FWC noted that bad language in the workplace is not uncommon in the transport and other similar industries.
Regards,
Charles Power
Charles Power
Editor-in-Chief

Employment Law Practical Handbook



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