There has been a spate of decisions delivered by the Fair Work Commission recently that deal with terminations of employment arising from the way employees have spoken to their managers. 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.
We thought it was a good time to review a few of those recent decisions and the lessons employers can take away from those decisions.
Kazmar v Test-Rite Imports Australasia Pty Ltd T/A Medalist  FWC 3008
A manager in the employer’s business was explaining to an employee 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—”. On the basis that the employee had been previously warned about his temper and outbursts, the employer dismissed him.
The Commission found that the comment was not made in anger or with aggression and that the employee was merely frustrated. 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. The employee was awarded compensation.
Hain v Ace Recycling Pty Ltd  FWC 1690
The employee in this case was a labourer who was asked to work overtime but refused to because his employer had failed to pay him for overtime previously worked. The employee called the chief executive of the business to discuss the issue.
During a heated conversation, both the employee and the chief executive unleashed a barrage of profanities. 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.
The Commission found that the employee’s comment was a valid reason for the dismissal but the procedural deficiencies in the dismissal rendered it unfair. The employee was awarded a small amount of compensation.
Dwyer v Steelcon Pty Limited T/A Steelcon Cava  FWC 2866
In this case, an employee and his manager were having a discussion about the employee’s meal entitlements when the employee pointed to his posterior and told his manager to “kiss my arse”. The employee then collected his work tools and left. The employer construed the employee’s conduct as his resignation.
The Commission held that the employee had resigned “in a moment of pique” and the employer had reasonably relied on his conduct to assume that he had voluntarily ceased his employment. On that basis the Commission dismissed the employee’s application for unfair dismissal.
Hennigan v Xmplar Building Solutions Pty Ltd T/A Xmplar Building Solutions  FWC 2938
This case is a good example of how bad language doesn’t necessarily have to involve swearing; threatening language can be equally damaging.
The employee in this case told his employer that he was going to “fix him up” after finding out his employer would be unable to support his permanent residency application.
The employer interpreted this comment as a threat and terminated the employee’s employment immediately. He later reported the threat to police.
With reference to the Small Business Unfair Dismissal Code, the Commission found the dismissal was fair because the employer’s understanding of the employee’s comment was reasonable. In addition to which, the employee had previously been warned about his language and aggression in the workplace after he called his employer’s brother and fellow employee “nothing but a f–king tramp”. The Commission rejected the employee’s unfair dismissal application.
Lessons for employers
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.
There is never an excuse for verbal abuse but minor infringements viewed in isolation might seem more significant than they really are. Affording employees procedural fairness is important for managing the risk of an unfair dismissal claim, so give warnings where appropriate and let employees know that their conduct is unacceptable and what the employer expects in future. 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.
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. If an employer’s expectations are written down and clearly communicated to its employees then an employee will find it difficult to argue that he or she did not know what behaviour was unacceptable.
Shane Koelmeyer is a director of specialist law firm Workplace Law.