Welcome to the next instalment in our series ‘Silly stuff that gets you sacked’, which details situations where both employers and employees come to grief, with a serious message to employers regarding proper handling of inappropriate employee behaviour.
In recent times there have been several cases before the Fair Work Commission involving swearing. In such instances context has been key, as well as procedural fairness undertaken by the employer. According to a recent Fair Work Commission ruling, it seems that swearing in a foreign language is also a sackable offence – at least in a certain context, in this case the extreme offensiveness in Chinese culture of an insult conveyed in Mandarin by one Chinese-speaking employee to another.
The perpetrator, a Warehouse Coordinator for a mining company, was of Chinese origin and complained about being allocated backpacker accommodation in Perth because of a shortage of hotels. The company’s Administration Superintendent, who was also of Chinese origin, telephoned him because she was concerned about him being critical of her actions in making the booking and wanted to explain the circumstances.
When she called the Warehouse Coordinator, he abused her in Mandarin, saying words to the effect of: “F… you and f… your mother”.The company’s HR manager – also of Chinese origin – told Deputy President Brendan McCarthy that in Chinese culture insulting another person’s ancestors is highly offensive and he had never heard anyone at the mine site or the company’s headquarters make such a comment.
According to a witness account (from an HR officer) of the disciplinary meeting at which the comments were put to the Warehouse Coordinator, the company’s then IR Manager made it clear he had gone too far. “Saying ‘F… you’ is offensive, but saying ‘F… your mother’ crosses the line. There are certain boundaries. Insulting another colleague’s mother is totally unacceptable,” the IR Manager told the Coordinator. Deputy President McCarthy upheld the dismissal by the company.
Whether or not dismissal for swearing at work is appropriate and would be upheld by the Fair Work Commission if challenged, may depend amongst other things, on the context of when, to whom, where and how the conduct occurred. The FWC may also look at whether or not the worker was provided with appropriate bullying and harassment training.
Following proper procedures in terms of investigating an employee who has been accused of misconduct (including swearing) is vital. Failure to follow an impartial and well-documented process may jeopardise any decision to terminate. It is also important to ensure that the claims are put to the accused employee and that they are given a reasonable opportunity to respond.
Shouting and swearing with malicious intent can be seen as bullying in certain contexts and this should be covered in bullying and harassment training, with relevant Human Resources Policies and Procedures clearly communicated to employees.
