Employee verbally abuses boss in team meeting – dismissal upheld

A dockworker who called his boss a “d.ckhead” and a “c.ck” in front of his team has had his dismissal upheld by the Fair Work Commission. As a result of a thorough workplace investigation and a clear Code of Conduct, the employer was able to successfully defend its disciplinary action before the FWC.

The employee was dismissed from his job as a dockhand for a marine contractor to the resources industry in September 2013, after claims that he swore and engaged in “abusive, harassing and threatening behaviour” towards his colleagues and supervisors on multiple occasions throughout 2012 and 2013.

In September 2013, during a regular morning meeting with his crew, a Leading Hand “giggled” when he read aloud a card submitted by one of the work group’s other employees, stating “reflective strips on work shirts blinding forklift operators” as a workplace hazard.

In response, the employee reacted by loudly and aggressively verbally abusing the Leading Hand, including saying to him: “You’re a d.khead.  You’re supposed to be a leader of this group.  You’re a c.k.”

This followed four previous incidents of workplace misconduct – including the issuing of a final warning.  On another occasion, the employee told his supervisor “loudly and aggressively” to “get f.cked” and “get the lazy c.nt to do it” when asked to help another worker.

The employer initiated a workplace investigation.  The employee had an opportunity to respond and received notification for the reason for his dismissal.  During the workplace investigation, the employee denied he swore at the Leading Hand.  Despite the employee’s denials, the employer considered the allegations substantiated.

To improve culture and reduce rampant swearing, the employer had also introduced a Code of Conduct in July 2013 – prior to this particular incident.

The employee’s lack of honesty, coupled with a clear breach of the employer’s recently updated Code of Conduct, gave the employer multiple valid reasons for the employee’s dismissal.

During the hearing, the FWC highlighted a fundamental distinction about workplace swearing by pointing out that:  “…there is a generally appreciated distinction between regularly using swear words as part of everyday descriptive language and swearing aggressively and maliciously at another person”.

The FWC preferred the evidence of the employer and agreed that the employee’s behaviour was not acceptable “in the context of the culture of this particular workplace.”

The employer was also able to rely on the newly formed workplace Code of Conduct to show that it had “put its house in order” and made clear to employees the consequences of inappropriate conduct, such as swearing.  Coupled with a swift and decisive workplace investigation, this enabled the employer to successfully defend its decision to dismiss the employee, despite evidence that workplace swearing had at one time been commonplace.

iHR observes that employers can face costly and time consuming legal action if they do not follow procedure when disciplining or dismissing employees.  One way of ensuring correct procedure is followed is via thorough and expert workplace investigations.

iHR provides a range of investigation services, from dealing with informal complaints to significant and complex formal investigations.  We are experienced in dealing with complaints at operational to senior executive and board level, including liaising with unions involved in representing parties to a complaint.  iHR can also review your internally-conducted workplace investigations, providing advice or recommendations, and can help ensure that internal workplace investigations are sound and will stand up to external testing.