NatRoad has recently represented a member in unfair dismissal proceedings where an employee was dismissed for serious misconduct after the employee directed a tirade of abuse to another employee. That abuse involved swearing and belittling language. The case raises the question of: when is it appropriate to counsel or even dismiss an employee for swearing in the workplace? Throughout Australia, it is a crime to use offensive, obscene or indecent language in or near a public place (see table), but what about swearing at work?
This article attempts to answer that question, however each situation is unique and you should seek specific advice on the particular circumstances, rather than relying on this article for advice. Employment law is different from criminal law and appears to give more leeway to employees’ swearing.
In a case involving a truck driver, Smith v Aussie Waste Management P/L, the Fair Work Commission found that whilst it was appropriate for the company to have disciplined the driver, he should not have been dismissed for swearing at his managing director in a private telephone conversation. The Commissioner, in that case said that in the context of a one-on-one heated discussion with his manager without anyone else present, the driver’s conduct was not “sufficiently insubordinate” for him to be dismissed. She also said that “I would not consider it uncommon for bad language to be used in the workplace in this or other similar industries.”
That finding reinforces that one isolated incident involving bad tempered swearing is unlikely to be enough to underpin a dismissal, rather it should result in the employee receiving a formal warning. There are other Fair Work Commission decisions, however, that make it clear where there is abuse directed at other employees or a supervisor, even where swearing is commonplace, that conduct would give rise to a right to summarily dismiss an employee where there had been prior warnings of similar conduct or the swearing is accompanied by other threatening conduct (waving a fist, threats of assault). The Commission will also take into account the circumstances of the employee (whether they were acting out of frustration rather than malice for example) in determining if dismissal was warranted.
Even so, how an employer goes about the dismissal process will remain important. Employers should always give an employee procedural fairness in the way the dismissal is undertaken. For example, dismissal of an employee by text message following the abuse of his boss in the most profane terms, was found by the Commission not to be fair and constituted unfair dismissal because of the method adopted. In broad terms, procedural fairness is afforded when an employer gives an employee a fair and reasonable opportunity to respond to matters or evidence that the employer indicates as justification for the disciplinary action that leads to the termination of employment. The detail of how to go about the process of giving the employee procedural fairness is one of the matters on which NatRoad provides advice to members before the termination of employment of an employee. That is the best time to seek advice.
So, the bottom line is that when an employee has sworn in the workplace, before you as an employer take action against them you should consider the circumstances of the employee, whether any prior warnings have been given, whether the culture of the workplace is such that swearing is accepted and whether the swearing was directed at another person and was accompanied by other threatening actions. Each of these considerations should be weighed before discipline or dismissal is considered.
|“A person shall not in, near, or within the view or hearing of a person in, a public place behave in a riotous, indecent, offensive or insulting manner.” Crimes Act 1900 (ACT) s392
|20 penalty units (currently $3200 fine)
|“A person must not use offensive language in or near, or within hearing from, a public place or a school” Summary Offences Act 1988 (NSW) s4A
|6 penalty units (currently $660 fine)
|“A person who in a public place, or within the view or hearing of any person passing therein … uses any profane, indecent or obscene language, shall be guilty of an offence” Summary Offences Act 1923 (NT) s53
|$2000 fine or 6 months imprisonment, or both
|“A person commits a public nuisance offence if the person behaves in … an offensive way … A person behaves in an offensive way if the person uses offensive, obscene, indecent or abusive language” Summary Offences Act 2005 (Qld) s6
|If the person commits a public nuisance offence within licensed premises, or in the vicinity of licensed premises – 25 penalty units (currently $3336) or 6 months imprisonment.
Otherwise, 10 penalty units (currently $1334) or 6 months imprisonment
|“A person who, in a public place or a police station … uses offensive language [including threatening, abusive or insulting language], is guilty of an offence” Summary Offences Act 1953 (SA) s7
|Fine of $1250 or imprisonment for 5 months
|“A person shall not, in any public place, or within the hearing of any person in that place … use any profane, indecent, obscene, offensive, or blasphemous language; or use any threatening, abusive, or insulting words or behaviour calculated to provoke a breach of the peace” Police Offences Act 1935 (Tas) s12
|3 penalty units (currently a fine of $516) or imprisonment for 3 months.
A person convicted of such an offence within 6 months of another conviction under this section (or any other offence) is liable to double prescribed penalty.
|“Any person who in or near a public place or within view or hearing of any person being or passing therein or thereon – … uses profane indecent or obscene language or threatening abusive or insulting words … shall be guilty of an offence” Summary Offences Act 1966 (Vic) s17
|10 penalty units (currently a fine of $1650) or imprisonment for 2 months
For a second offence: 15 penalty units (currently a fine of $2475) or imprisonment for 3 months
For a third offence: 25 penalty units (currently a fine of $4125) or imprisonment for 6 months
|“A person who behaves in a disorderly manner [including using insulting, offensive or threatening language] is guilty of an offence” Criminal Code Act Compilation Act 1913 (WA) s74A
Alternate Link here
|A fine of $6000