29/04/2015

Yes, you can be sacked for swearing at the boss, but it does depend on a number of things - WARNING: this article contains language that you might find offensive so read on at your peril.

First Vegemite was taken over by an American company, then Holden shut up shop and now another great Aussie tradition, swearing at the boss, is under threat.  What is our country coming to?

A recent case where the termination of an employee was upheld when she called her boss “a complete d_ck” (and no, it’s not ‘duck’) has caused confusion in the area of just when you can be terminated for swearing at your employer or their senior management.

Let’s face it – swearing in our workplaces has become common. Perhaps not so much in the office of the diocesan council but certainly on the average building site and plenty of other places including even lawyers’ offices (can you believe it?).

The trick is to work out how much is too much and when it moves from everyday language to a material insult that undermines the target and constitutes a breach of the employment contract.

In February this year in Smith v Aussie Waste Management Pty Ltd [2015] the employee said to the managing director in a phone conversation: "You dribble sh_t, you always dribble f_cking sh_t".  This was found to require discipline but not termination.

Then there was the senior employee who sent an email to colleagues saying that their boss engaged in "excessive masturbation" [Cronin v Choice Homes (Qld) Pty Ltd (2013)].  It was found not to justify dismissal. No surprisingly perhaps the CEO felt it depicted him as a "w_nker" but the Fair Work Commission said although the comment was "ill-considered and personally offensive", it was not meant to be taken literally and was a joke consistent with the culture and communication of the senior team.

OK, so far we have decisions which indicate that some swearing or offensiveness, although not exactly permissible, does not necessarily justify instant dismissal, particularly if language and behaviour like that is part of the firm’s culture.

But then there’s the decision in Rikihana v Mermaid Marine Vessel Operations Pty Ltd [2014], where the Commission found that even wharfies can swear too much. Here the employee called the employer a "c_ck" and "d_ckhead".  Again we have ‘rough’ culture where such language would be used regularly.  The decision seems to have turned on the fact that there had been repeated discipline for using this type of language against the employer and that in light of that disciplinary pattern termination was justified.

The Commission said there was a difference between regularly using swear words that become part of everyday descriptive language and swearing aggressively or maliciously at a person.

Which brings us to the recent case of the hapless Louise Nesbitt and Dragon Mountain Gold Limited [2015].  

Dragon Mountain Gold only had two employees - Ms Nesbitt and her boss.  She was an office administrator/bookkeeper and her boss was Managing Director and Chairman, Mr Gardner.

As part of refurbishing the company’s new office, Ms Nesbitt engaged her daughter's boyfriend to do some plumbing. Prior to the commencement of the work, Ms Nesbitt sent a text message which was intended for the plumber, but which she accidentally sent to Mr Gardner instead. The text message said:

"Now remember ... [Mr Gardner] is a complete d_ck ... we know this already so please try your best not to tell him that regardless of how much you might feel the need"

She sent a later message to Mr Gardner asking him to delete the previous message without reading and that she was sorry. She then sent a further text message to Mr Gardner to say the original message wasn’t really how she felt and she was just trying to be funny to her ‘son-in-law’.

Dragon Mountain Gold terminated Ms Nesbitt's employment for gross misconduct.  Ms Nesbitt made an unfair dismissal application.

The Fair Work Commission dismissed her appeal and found:

•    Ms Nesbitt was sharing her assessment of Mr Gardner with the plumber, who was her daughter's boyfriend;
•    given the plumber had little prior contact with Ms Nesbitt, the text message reflected that Ms Nesbitt was the source of the opinion, an opinion that the plumber agreed with;
•    calling a person a "d_ck" is derogatory and using the word "complete" before this conveys the message that the person is "without exception, an idiot or fool – they are nothing less than a "d_ck"";
•    calling Mr Gardner a "d_ck" was not merely a "light hearted insult" as Ms Nesbitt submitted, but "hurtful and unpleasant";
•    while trust and confidence is essential in any employment relationship, that Dragon Mountain Gold had only two employees meant that this was an "absolute necessity".

The Commissioner found that Dragon Mountain's belief that Ms Nesbitt's conduct was sufficiently serious to justify summary dismissal was reasonable and therefore Ms Nesbitt was not unfairly dismissed.

What can we take from all these cases?

1.    Allowing swearing as part of the firm’s culture will mean that subsequent swearing incidents will be judged against that culture.

2.    Swearing on the job is not necessarily grounds for instant dismissal, although it may be if the employee has been warned about it and disciplined before.

3.    Swearing generally is different from swearing aggressively at someone.

4.    Swearing at someone is different from making offensive statements about them to a third party, which is more serious, particularly if the third party is not part of the business.

5.    Swearing and offensive remarks can contribute to an unhealthy workplace and undermine working relationships and the trust and confidence between employees which if bad enough can justify instant dismissal.

6.    What is a light-hearted joke to one person may be deeply distressing to another and the feelings of the target will be taken into account in a decision as to seriousness unless they are particularly and unreasonably sensitive.

7.    Employees must still be given procedural fairness, so employers should have written policies on the issue of swearing and offensive remarks and an outline of the disciplinary processes that would follow such allegations.

For further information, please contact Townsends Business & Corporate Lawyers on (02) 8296 6222.