Mind Your Language

In the recent case of Boris v Metcash Trading Limited T/A Metcash [2019] FWC 3993, the Fair Work Commission assessed an unfair dismissal claim by an employee who claimed that his swearing in a formal meeting was “conversational swearing”, effectively that when he did swear in conversations it was not directed at anyone and that the workplace was one where “people use intemperate language and tensions.”

The employee was a part-time store person for Metcash working 20 hours and was dismissed for serious misconduct; namely his conduct at a meeting regarding a confrontation he had with a supervisor several days earlier.

The employee had failed to comply with a supervisor’s instruction to attend a debrief meeting later that day. The employee recorded this instruction despite the supervisor’s instruction not to, claiming that the recording was done to demonstrate requests for advanced notice and time to arrange a representative to attend. Evidence from other Metcash staff provided that there was historical antagonism between the employee and this supervisor.

In accordance with the wishes of the employee the performance review was held several days later. In arranging this meeting, the supervisor texted the employee and called him three times on his day off without leaving a message.

Metcash claimed the employee was aggressive, intimidating and his discourse was laden with expletives, at one point saying to his supervisor: Under no circumstances are you to contact me out of work hours for any reason whatsoever. If you ever harass me out of work hours again, I will tell you exactly what I think of you and your mother.This conduct in conjunction with the prior confrontation and poor behaviour were used as the basis for termination.

At the hearing the employee admitted to the swearing and making the reference to the supervisor’s mother. The employee however submitted that the swearing was not directed at anyone and that the workplace was one that permitted swearing. The employee further submitted that the reference to the supervisor’s mother was borne of frustration with the supervisor’s conduct toward him. The employee admitted that while his language and comments warranted censure and discipline, this did not constitute a sound reason for dismissal in light of all the case facts.

Deputy President Beaumont noted that:

“Apparently, ‘conversational swearing’ appears to be dialogue punctuated by the occasional or perhaps often cited profanity … I assume that the reference to ‘conversational’ is because the offensive words are buffered by a tone and voice volume that would otherwise be considered ‘conversational’. Hence, to speculate, such profanities become accepted part of the meeting vernacular because they are couched in such a way.”

However, this argument was rejected:

“I do not accept that ‘conversational swearing’ … is acceptable conduct in a meeting where conduct issues are being discussed, or allegations are being traversed, or a person has been asked to show cause. Whether that person is the employee against whom allegations are made, or the person facilitating or running the meeting, makes no difference.”

On this basis, the employee’s conduct was held to be in breach of the Metcash Code of Conduct which constituted a valid reason for dismissal.

In the contrasting case of Matthews v San Remo Fisherman’s Co Operative [2019] FWC 4877, the FWC did not find that swearing by an employee during a confrontation with a general manager was aggressive, abusive, or enough to constitute a valid dismissal.

In that case the employee, a pelican feeder, had been approached by the Co-Op general manager on several occasions to request details about revenue raised from badge sales by a separate entity known as the Pelican Research Group, of which the employee was a member. The employee denied these requests each time until he was asked a similar question by a visitor. The employee subsequently confronted the general manager concerned that this was a set up.

During the confrontation the employee said to the general manager “what you did was very f***ing disrespectful”, to which the general manager replied that it was “effing offensive that you would make such an accusation”. The employee was subsequently dismissed by email due to his refusal to disclose information about the badge sale, his offensive accusation toward the general manager and his conduct in swearing at the general manager.

Commissioner Gregory was not satisfied any of the above reasons constituted a valid reason for dismissal. On the point of the employee’s swearing, the Commissioner found that the employee’s language was used in frustration and not directed with any aggression or threat, and it was in the context of a robust discussion between employees who otherwise had a good relationship. In addition, Commissioner Gregory held that there was little distinction between the terms “f***ing” and “effing” and that it was simply an exercise in hair splitting to suggest that the general manager’s language was somehow more restrained or differing in intent.

From these cases we can see that the general workplace culture, as well as the relationship between employees and/or employers and the context of any conversation, will determine what is and isn’t acceptable conduct. Notwithstanding this, it is very apparent that abusive or threatening language is wholly unacceptable and will not be accepted in any circumstances.

Whilst swearing may be an aspect of certain workplace cultures, it does not excuse inappropriate or abusive swearing directed at others and is a valid reason for dismissal as concluded by the Fair Work Commission (FWC) in Pridham and Rose v Viterra Operations Pty Ltd T/A Viterra [2019] FWC 1018.

Wiebke Herrmann

Wiebke Herrmann is a Director at James Conomos Lawyers where she practices in the areas of insolvency, bankruptcy and commercial litigation. If you or your business needs assistance navigating a legal dispute, please do not hesitate to contact her. 

3004 8214 |    |  wiebke@jcl.com.au