'How a business reacts must be dealt with proportionately to the level of the breach of a policy'
Swearing has become part of everyday Australian language to the point that it is not uncommon to hear it any environment that you enter – but does that make it acceptable in a workplace?
“There are no hard and fast rules about swearing in an office and no laws that deal specifically with swearing,” Ethan Brawn, special counsel with Holman Webb Lawyers, said.
“Whether swearing is tolerable in an office environment is largely a matter of context and circumstance.”
For example, it is generally acceptable to let slip a swear word in frustration such as when a computer crashes in a back-office area, he said.
“This can serve as a form of catharsis for many people; however, if the same expression was used in a public area of a business such as the reception area in the presence of clients it could cross the line to being unacceptable as it can appear unprofessional and create a poor impression in the eyes of the clients that are within earshot.”
Recent case highlights issue of swearing
In a recent case before the Fair Work Commission, an employee named Warren Power was sacked by his company Lyndons Pty Ltd for allegedly using inappropriate language and bullying a work colleague.
The offended colleague filed a written complaint the very day of the incident and resigned two days later. Lyndons investigated the complaint. In November 2022, Power was dismissed for bullying and sexual harassment. Power disputed this and made an unfair dismissal application.
The dispute was decided on two fronts: whether the words as alleged were used and whether the employee was unfairly dismissed for bullying and sexual harassment.
The Fair Work Commission deputy president was satisfied that the words were said by Young and fell within the definition of sexual harassment section 1.07 of the Fair Work Regulations 2009. He said, ‘whilst swearing in the workplace may or may not be commonplace, the words used by [the employee] went far beyond simply swearing in the workplace and fall squarely within the definition of Serious Misconduct as prescribed by the Fair Work Regulations.
“Such conduct in the workplace is simply intolerable, the evidence was clear that it was unwelcome.”
The deputy president also ruled that Young was not unfairly dismissed under section 385 of the Fair Work Act.
Company policies for misconduct
“Businesses should incorporate standards of language in their code of conduct and other policies that regulate workplace behaviour,” Brawn said. “This can include policies on professional, respectful, and courteous communication.”
It is one thing to be swearing in frustration at an inanimate object, but another to be directing that kind of language at a co-worker or manger, she said.
“There can also be a crossover into other policies such as anti-bullying and work health and safety polices. Whilst they may not specifically address swearing, the policies will address verbal conduct that could amount to bullying or cause a psycho-social risk.”
A business should respond to breaches of policies in accordance with their disciplinary policy, Brawn said.
“There is nothing unique about this issue that requires a special approach. How a business reacts to instances of swearing must be dealt with proportionately to the level of the breach of a policy.”
If there is an employee that swears too much, this may be best dealt with by a quiet conversation, she said.
“You may find they weren’t even aware they were swearing that much. To the opposite end of the spectrum, if an employee was using vulgar language in the course of sexually harassing a co-worker, this would result in a harsher punishment including possible termination.”
Why do people swear?
A 2019 survey conducted by dental brand Oral-B found that the average Australian swears seven times a day, with men swearing more than women.
The most surprising fact from the survey was that 54% of Australians don’t swear to offend, they do it to relieve tension, while a further 24% use bad language for comedic effect.
“Swearing amongst teams indicates higher levels of trust and comfort levels for team members to be their authentic selves,” Adrian Baillargeon, leadership team performance specialist, said.
Researchers at Wellington's School of Linguistics and Applied Language Studies conducted a study on the usage and purpose of the expletive ‘fuck’ among workers in a New Zealand soap factory, he said.
“The findings showed that the workers frequently used profanity within their team but less when communicating with members of other groups.”
The University of East Anglia in the UK has also found that occasional swearing at work can help co-workers express their feelings and build tighter relationships,” Baillargeon said.
The survey also revealed that 10% of Australians swear more than 20 times a day and the most common occurrences of swearing happen when people are driving; doing household chores, cleaning, and arguing with a partner, however, there is a fine line between what you can and can’t say at work no matter the circumstances.
