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Does Swearing Justify Dismissal?

Published May 23, 2016 (last updated June 25, 2020) Author: Employsure

Workplace culture differs from workplace to workplace and as such so does the way employees act whilst on the job. In some workplaces swearing can be a frequent occurrence, so when does swearing become a valid reason for dismissal?

The Fair Work Commission (FWC) has had differentiating views on when swearing constitutes as a valid reason for a worker’s termination. In one particular case a storeman was dismissed following an incident where he swore at his manager and colleagues. While there was no complaints regarding his general standard of work, his colleagues claimed his swearing made them feel uncomfortable.

The FWC ruled the storeman’s swearing dismissal not unfair based on the frequent and aggressive manner of the swearing, even though no warnings were issued to him prior.

However, in another recent case the FWC overturned an employer’s decision to terminate a garbage truck driver who swore at his manager. The FWC ruled that while the behaviour should not be tolerated, it was not enough to warrant his dismissal. They found that swearing was a common occurrence in the workplace and the driver did not intend to undermine his employer’s authority.

What employers can take away from both these cases is that terminating an employee is always going to be tricky. Employers need to ensure they seek specialist advice prior to terminating an employee, as sometimes the FWC does not consider swearing in the workplace to be unacceptable.

These cases show that whilst workplaces may be more tolerant of swearing, whether or not swearing is a valid reason for dismissal will depend heavily on the circumstances and the relevant workplace culture.

When deciding to terminate an employee due to swearing, an employer must take into consideration:

  • how often does the swearing occur?
  • is your workplace culture one where swearing is generally tolerated?
  • is the swearing delivered in an offensive or threatening way?

Employsure can assist with any questions you may have relating to your employees’ conduct or the termination process so contact us today on 1300 207 182.

Sourced from CCH and Sparke Helmore Lawyers

About Employsure

Employsure is Australia’s largest workplace relations specialists. We take the complexity out of workplace laws to help small business employers protect their business and their people.

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