Firing staff for the F-word? Think again!

by Victoria Bruce25 May 2016
When an employee swears at their manager in a fit of anger, many managers might be tempted to giving them their marching orders on the spot.

But firing a staff member in response to an outburst of bad language can result in legal backlash for the employer, as reflected in a number of recent Fair Work Commission decisions.

Employers must exercise procedural fairness, even if they themselves become impassioned in the heat of the moment, says Shane Koelmeyer, director of specialist law firm Workplace Law.

“We all know bad language in the workplace is unacceptable but employers seeking to dismiss employees as the result of outbursts of profanity must still take the time to properly execute the termination process or risk adverse findings from the Commission,” Koelmeyer says.

He highlights a number of recent FWC decisions dealing with terminations of employment arising from the way employees have spoken to their managers.

In Kazmar v Test-Rite Imports Australasia Pty Ltd T/A Medalist [2016] FWC 3008, a manager was showing a staff member how to complete a task that he had earlier failed to complete to the desired standard.

“In frustration, the employee told his manager to “shove his roster up his a—”,” Koelmeyer writes in his article for Smart Company.

“On the basis that the employee had been previously warned about his temper and outbursts, the employer dismissed him,” he says.

When considering the case, the FWC ruled that the employee’s comments did not constitute a valid dismissal, noting that the comment was a product of the employee’s frustration and not made in anger or with aggression.

“The Commission noted that far worse things have been said in workplaces and when taken in context, the employee’s comments did not constitute a valid reason for dismissal,” Koelmeyer says.
“The employee was awarded compensation.”

In Hain v Ace Recycling Pty Ltd [2016] FWC 1690, the employer had requested his employee to work overtime, yet the employee, who was a labourer, refused to do so as his employer had not paid him for previous overtime.

The employee called the chief executive of the business to discuss the issue and the conversation turned nasty with both the employee and the chief executive swearing at each other.

“The call culminated in the employee saying “that’s not my f–king problem you owe me money you old c–t.” Later that day, the chief executive dismissed the employee via text message,” Koelmeyer says.

Although the FWC decided in this case that the employee’s comment provided a valid reason for his sacking, his employer had erred by not following correct procedure in terminating him.

The employer was ordered to pay a small amount of compensation to the employee.

Koelmeyer that while employers should not tolerate verbal abuse, they need to ensure they afford their employees procedural fairness to minimize the risk of an unfair dismissal claim.

“When considering dismissing an employee for using bad language in the workplace, it is important to calmly evaluate the whole of the circumstances surrounding the incident and avoid any knee-jerk reactions (like dismissing an employee via text message) due to embarrassment or anger,” he says.

He says employers should also consider if the bad language is only a minor infringement and consider alternatives to termination, give warnings where appropriate and let employees know that their conduct is unacceptable and what the employer expects in future.

“Employers should develop a Code of Conduct that incorporates a Standard of Behaviour and regularly train employees on the Code and what is required in terms of workplace behaviour,” he says.

“At the end of the day if a decision is made to terminate an employee’s employment the employer should follow the proper processes and ensure procedural fairness is provided.”


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