When is swearing in the workplace a basis for dismissal? - Unfair/ Wrongful Dismissal

Numerous recent cases have considered swearing in the workplace. But when the decision at first instance in Gosek v Illawarra Coal Holdings Pty Limited T/A South32 (Gosek)¹ was handed down by Commissioner Riordan late last year, there was a media frenzy, followed by widespread criticism of the decision.²

Commentators were quick to voice their outrage, suggesting that perhaps community standards of acceptable workplace behaviour had diverged from those of the Fair Work Commission (FWC).

To help clarify what employers need to consider when dismissing an employee on the basis of inappropriate language, we've provided below a round-up of cases from the past 12 months in which swearing took centre stage.

First up, we unravel the Gosek decision at first instance, on appeal and the subsequent rehearing.

THE GOSEK DECISION

The background facts

Mr Gosek was employed by Illawarra Coal Holdings Pty Ltd (Illawarra Coal) for over 11 years. On 4 October 2016, on one of his days off, Mr Gosek consumed alcohol and prescription medication. Under the influence of these substances, he sent text messages and made phone calls to eight of his colleagues.

He used offensive language, including the phrases 'f***ing dog' and 'dog c***' to describe them. He also made threats about their 'ongoing involvement and support with the union'.³ The next day, Mr Gosek expressed remorse about his behaviour and apologised to those he had contacted. He also notified them, and his employer that he was suffering from depression.

After an investigation into the incident, Mr Gosek's employment was terminated. He subsequently brought an unfair dismissal application under the Fair Work Act 2009 (Cth) (FW Act).

The decision at first instance

Commissioner Riordan of the FWC found that although Illawarra Coal had a valid reason to terminate Mr Gosek's employment, the termination was harsh, unjust and unreasonable.⁴ The reasons for the decision included:

Mr Gosek's mental health and alcohol issues;
the lack of procedural fairness in the investigation by Illawarra Coal; and
the fact that swearing was commonly accepted in this type of workplace.

Commissioner Riordan commented that Illawarra Coal had condoned this kind of language for many years,⁵ particularly given no other employees had been reprimanded for this type of behaviour, including two supervisors who had harassed colleagues.⁶

Further, Commissioner Riordan considered the fact that 'Mr Gosek and his colleagues work in a coalmine - not a convent'.⁷ More generally, Commissioner Riordan noted that this kind of language is 'unfortunate but very commonplace' in the workplace.⁸

Commissioner Riordan ordered that Mr Gosek be reinstated.

The appeal

On appeal,⁹ Commissioner Riordan's decision at first instance was overturned by the Full Bench of the FWC.

The majority (Deputy President Gooley and Deputy President Anderson) found that by focusing on the language used by Mr Gosek, rather than the totality of Mr Gosek's conduct (including the threats of physical violence), Commissioner Riordan failed to properly characterise the gravity of Mr Gosek's conduct. The effect of mischaracterising the conduct was that the Commissioner was not able to properly weigh the existence of a valid reason for dismissal against the mitigating factors raised by Mr Gosek.

The Full Bench held that any flaws in the employer's internal decision making process were an irrelevant consideration in determining whether there was a valid reason for dismissal.

Importantly, it was held that it was open to the Commissioner to have regard to the type of language regularly used in the mine, and the fact that employees had not been previously disciplined for the use of such language.

Following the quashing of Commissioner Riordan's decision and orders, the Full Bench determined that it would rehear the application.

The rehearing

On rehearing,¹⁰ the majority of the Full Bench of the FWC (Deputy President Gooley and Commissioner Booth) held that Mr Gosek's dismissal was harsh and ordered that he be reinstated.

The majority found that Mr Gosek's conduct – while not amounting to serious misconduct within the meaning of the FW Act – did provide a valid reason for dismissal.

However, when balancing Mr Gosek's conduct against mitigating factors relied upon by him, the majority found that the dismissal was harsh. Relevantly, the majority found that there was a conflagration of factors (including the death of a family member, depression and exhaustion) that caused an otherwise reasonable man to behave in a manner that was out of character.

While it was found that none of these factors excused Mr Gosek's behaviour, it was still sufficient to tip the balance in favour of a finding that the dismissal was harsh.

Key takeaway: Make sure the misconduct is weighed against all the mitigating circumstances. While an employee's conduct may well provide a valid reason for dismissal, employers still need to carefully consider any mitigating factors raised by the employee and balance these against the employee's conduct to determine whether, in the circumstances, dismissal would be harsh.

In Gosek, the flawed investigation was irrelevant in determining whether there was a valid reason for dismissal. In other cases, however, a flawed investigation may have serious consequences for the employer, such as a finding of denial of procedural fairness. Further, a poor investigation may mean that the decision maker is not armed with the correct information on which to make their decision. For this reason, employers must continue to ensure that thorough and balanced investigations are undertaken into allegations of workplace misconduct.

OTHER RECENT CASES

When does swearing become more than bad language?

In Rombola v Rail Commissioner,¹¹ the FWC upheld the dismissal of a passenger service assistant who was dismissed after (among other things) belittling and refusing to engage with a colleague who had won a promotion they both applied for in 2013, including referring to her colleague as a 'f*cking bitch'¹² and a 'c**t'.¹³ The employee also allegedly posted a Facebook status update calling her colleague a 'w*nker'.¹⁴

The FWC concluded that the employee's actions towards her colleague were 'more than bad language',¹⁵ finding that the 'tone and manner of the comments and the associated conduct was clearly unreasonable and properly described as serious bullying, even in a robust workplace where inappropriate language was common and tensions between employees were known to exist'.¹⁶

Commissioner Hampton found that the employee's conduct was deliberate, inappropriate and inconsistent with relevant policies and reasonable expectations within the workplace. He noted that the employee's conduct showed a pattern of behaviour which undermined the necessary trust and confidence in the workplace. Further, the employee's lack of contrition and inability to genuinely recognise the inappropriateness of her behaviour was found to compound the seriousness of her conduct.

Key takeaway: It is essential to consider swearing in context. In some circumstances swearing will be more than 'bad language', but this call can only be made once all the factors have been weighed up.

When does swearing cross the line into intimidation?

In Australian Building and Construction Commissioner v Upton (The Gorgon Project Case),¹⁷ the Federal Court found that a CFMEU official engaged in adverse action and coercion when he threatened to write non-union members names on the back of bathroom doors to 'let everyone know who you f*cking dog c*nts are'.

The union official addressed around 50-60 employees during a site visit. He allegedly referred to employees who had left the union after the CFMEU had negotiated a new enterprise bargaining agreement as 'f*cking dog c*nts' on several occasions, as well as telling non-union employees to 'f*ck off somewhere else'.

The union official admitted to using profanities, but contended that it was common for people to swear on the site. Justice Barker said that on some occasions 'bad language, including what might be described as unnecessarily bad language – as in this case – might be given some tolerance in a workplace'. However, the union official's language in this instance was (in conjunction with other behaviour) 'a plainly intimidating statement'.¹⁸

The Federal Court found that Mr Upton's intention was to cause fear, emotional harm and distress to non-union employees. This was achieved. His actions constituted adverse action against another person who is not a member of an industrial association and coercion. The Court also found that the CFMEU was vicariously liable for his actions.

Key takeaway: Even when swearing is commonplace in a workplace, intimidating behaviour may be unlawful on the basis that it infringes statutory prohibitions on coercion and adverse action.

Does the 'punishment' for swearing fit the 'crime'?

In Coffey v QBar Darwin Pty Ltd,¹⁹ the FWC found that a café supervisor was unfairly dismissed after he was overheard calling his manager a 'racist b****', because he was denied procedural fairness. Although his actions warranted some reproach, they did not warrant dismissal.

Before the incident, the employee had complained to his employer that his manager was perpetuating an environment of 'cultural exclusion' in the workplace by employing Estonian staff and conversing with these staff members in Estonian. The employee also raised concerns about what he perceived to be favouritism of Estonian staff members.

On the day of the incident, the manager was leaving work with a number of Estonian staff members. When the employee farewelled the manager in English, she appeared to ignore him. The employee then turned to another employee and said 'she can be a racist b****'. This was overheard by another staff member and relayed to the manager.

When confronted, the employee admitted to making the comment, but made no apology for doing so. As a result of a downturn in business and the strained relationship between the employee and the manager, the employer made the decision not to offer the employee any further shifts.

The FWC found that whilst the employee's actions were inappropriate and unprofessional, warranting 'some reproach and warning as to [the employee's] conduct', they did not warrant dismissal.²⁰ The FWC also found that by simply not giving the employee any further shifts, the employer had denied him the opportunity to respond to the reasons for his dismissal.

Key takeaway: Ensure the punishment fits the crime. To that end, employers need to ensure that their responses are proportionate to the conduct in question. It is also essential to afford procedural fairness before deciding to dismiss an employee.

Why 'vulgar' language will not be a valid reason for dismissal if it is not the actual reason for dismissal

In Trialonas v Steric Solutions Pty Ltd²¹ the FWC found that a yard hand was unfairly dismissed despite calling the director at his workplace a 'backstabbing c***'.

After making the comment, the employee was dismissed. The next day, the employee apologised to the director by text message and the director invited him to her house, where she offered him his job back.

Two days later, the director's uncle (who also worked for the company) told her to dismiss the employee, which she did. The director subsequently met with the employee at a pub and apologised for dismissing him a second time, claiming that her uncle had 'forced her to do it against her will'.²²

Although there was no doubt that the employee's language was vulgar,²³ the FWC held that the reason for dismissal was not the language, but a direction given to the director by her uncle. Commissioner Johns commented on the poor HR protocols of the company and held the dismissal was not consistent with the Small Business Fair Dismssal Code, and was neither for a valid reason nor fair.

Key takeaway: You cannot dismiss an employee under the guise of their having used offensive language, when that is not the actual reason for dismissal.

OVERALL TAKEAWAYS FOR EMPLOYERS

The decisions in Gosek and the other cases discussed above don't provide any definitive guidance on when it will be appropriate to dismiss an employee for using inappropriate language at work.

However, what does emerge from the case law are two specific factors that will be key to any future decisions. These are:

Context. Whether the language is commonplace and tolerated in the workplace and whether the language was accompanied by other threatening behaviour directed at an individual or group of individuals.
Whether a measured approach has been taken. Ensuring that the disciplinary action is proportionate and that there has been a careful consideration of mitigating factors.

The cases we've discussed above, and others, demonstrate the importance of employers taking a clear and consistent stance on swearing and similar behaviour in the workplace. Without such a stance, it may be difficult to discipline employees for offensive or inappropriate conduct.

Indeed, if employers are committed to creating a more inclusive workplace, careful consideration must be given to controlling the type of language used by workers, managers and others. If offensive language is commonplace and tolerated as nothing more than 'banter', this may create an environment that excludes or is seen as hostile to employees of differing gender, race, religion and/or ethnicity from the 'majority' of employees at that workplace.

Footnotes

¹ [2017] FWC 4574.

² The decision at first instance in Gosek was appealed by the employer, Illawarra Coal, and the appeal was upheld by the Full Bench of the FWC . The Full Bench subsequently reheard the matter and the majority held that the termination of Mr Gosek's employment was harsh and ordered that he be reinstated (see further details below).

³ [2017] FWC 4574 [31].

⁴ Ibid [118].

⁵ Ibid [111].

⁶ Ibid [112].

⁷ Ibid [104].

⁸ Ibid [104].

⁹ [2018] FWCFB 749

¹⁰ [2018] FWCFB 1829.

¹¹ [2017] FWC 194.

¹² Ibid [63].

¹³ Ibid.

¹⁴ Ibid.

¹⁵ Ibid [84].

¹⁶ Ibid.

¹⁷ [2017] FCA 847.

¹⁸ Ibid [128].

^¹⁹[2017] FWC 4312.

²⁰ Ibid [47].

²¹ [2017] FWC 5068.

²²Ibid [32(d)].

²³ Ibid [10(s)].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.