By Ross Levin, Partner, Malcolm Davis, Partner, Adam Lunn, Partner and Lisa Anaf, Partner
If an employee swears at their employer, is that enough to warrant a summary termination of employment?
In a recent decision of the Fair Work Commission (FWC) in the matter of Smith v. Aussie Waste Management , it was held that a summary termination of employment of a truck driver who questioned the veracity of his management director’s statements, in an expletive laden and vulgar way, was unfair.
The Applicant was driving a truck with mechanical problems, and when the managing director (MD) noticed through his GPS location that the Applicant was driving slower than usual, the MD telephoned the Applicant. The Applicant swore at the MD, who he claimed also swore at him, before he hung up. The MD then called the Applicant back, indicating that he would not be spoken to in that manner, and effectively summarily terminated his employment.
The Applicant had previously received a written warning relating to his involvement in several motor vehicle accidents.
Deputy President Wells of the FWC found that:
“… any use of swearing must be considered in the context of the workplace”.
There was no evidence that the conversation between the Applicant and the MD was overheard by any other employees, and therefore potentially undermining the MD’s authority,
The Deputy President considered that it would not be uncommon for bad language to be used in the Respondent’s workplace or in other industries, and citied a Privy Council decision in relation to summary dismissals where it was held:
“ … their Lordships would be very loath to assent to the view that a single outbreak of bad temper, accompanied, it may be, with regrettable language, is a sufficient ground for dismissal”.
As such, the Deputy President found that the termination of the Applicant’s employment was unfair. It was held there was no valid reason for termination in the circumstances and the employee was awarded compensation.
This case shows that the grounds upon which an employer can summarily terminate the employment of an employee legitimately, particularly where bad language is used, may differ. This may depend upon the circumstances in which the use of the language arose, and the type of industry in which the parties operate.
Once again, sound policies are the key to informing employees as to what type of behaviour is acceptable in the workplace.
Care should also be taken before deciding to summarily terminate the employment of an employee, and if practicable, appropriate advice should be sought beforehand.