We see many cases where negative emotions arise at work. And it’s certainly not unusual for employees and employers to sprinkle angry discussions with yelling and/or expletives. Yet when does bad language warrant a strong reaction from the employer – or even dismissal?
Two recent cases demonstrate that violent or offensive communication can certainly lead to punitive repercussions. Of course, no two workplaces are the same and it is inevitable that some ‘blue’ language will enter a legal grey area.
We examine the potential fall-out from angry (and sometimes threatening) words spoken in the workplace.
In the matter of Hennigan v Xmplar Building Solutions, an Irish migrant worker was dismissed for using a phrase that the employer perceived to be particularly threatening. As background, the male Irish worker Hennigan was relying upon the employer’s alleged earlier undertaking to support his section 186 permanent residency application, as well as that of Hennigan’s partner.
The employer denied that any such undertaking had been made. Faced with being forced to leave Australia, Hennigan confronted the employer and unleashed a tirade of anger and accusations. Crucially, Hennigan uttered the phrase “I’ll fix you up,” which the employer took to be a clear threat. The worker was instantly dismissed.
The Fair Work Commission (FWC) took evidence from both parties regarding the circumstances and meaning of the phrase used. The employer maintained that this was a clear threat by Hennigan to inflict some form of vengeful violence on the employer. Yet the worker’s representatives noted that in Irish vernacular, the colloquialism “I’ll fix you up” means something less aggressive and would not actually constitute a threat.
FWC Deputy President Kovacic decided in favour of the employer, noting the definite threat that was implied by the worker in promising to “fix you up.” In this way, instant dismissal by the employer was considered appropriate in the circumstances.
We were interested to see that in Hain v Ace Recycling, the FWC took a different view to an angry exchange between worker and CEO, which culminated in extreme insults and dismissal of the worker.
The subject matter of the discussion centred upon overtime payments allegedly owing to Hain. Both Hain and the CEO swore during the conversation, using phases such as “f***ing money” and “not my f***ing problem”.
The worker at some stage called the CEO an “old c***t.” The CEO later informed the worker via text message that he was dismissed.
In examining the worker’s inappropriate language, FWC Deputy President Asbury conceded that this would ordinarily constitute a valid reason for instant dismissal. However, considering the employer’s own use of strong language and the inappropriate method of communicating the dismissal, the FWC established that the employer’s actions were unreasonable in the circumstances.
Time and again we see situations where emotions have boiled over in the workplace. The outcomes in Hennigan and Hain demonstrate that when it comes to deciding dismissal cases, the FWC can indeed go either way in condoning the employer’s decision to dismiss. Important elements to be considered include the general culture of the workplace relevant to swearing, the size of an organisation, any danger or threats detected in a worker’s words, plus the manner of dismissal.
It reminds us that clear policies around acceptable behaviour for everyone in the workplace are a must-have for all employers, regardless of size or industry. Similarly, we recommend to employers that an audit of their termination policies and procedures be undertaken regularly. This is vital to ensure that when dismissal becomes necessary, employers have up-to-date guidance on the best action to take in the circumstances.
For employers, instigating a dismissal will ideally be done with cool heads and reasonable actions. Swearing, yelling or threats by a worker are certainly all undesirable behaviours. Yet context is key in these situations; it pays for employers to look carefully at the bigger picture within which the conduct occurred.
If you’d like assistance with putting clear policies and procedures around acceptable behaviour into place, Wise Workplace can help. Check out our new Workplace Investigation Toolkit and streamline your investigation process.