Ongoing social changes have paved the way for leniency when it comes to swearing in the workplace. The question becomes when does swearing in the workplace amount to misconduct. The answer largely dependents on workplace culture and the context in which it is used.
A recent decision by FWC highlights the issue of where to draw the line between swearing and grounds for dismissal. In this case, an employee of Kailis Broswas dismissed for abusively swearing at his supervisor over an OH&S incident, which caused him to injure his lower back. Following the injury, he directed his anger towards his supervisor which included a repeated use of the ‘f’ word in an aggressive manner. FWC found that whilst there may have been an existing culture of swearing, the fact that the employee had already received a warning for swearing in the past, coupled with the aggressive nature of the incident, ensured there was a valid reason for his dismissal.
Whilst this case affirms the standpoint that employers will not tolerate the use of abusive language, context and culture is everything when it comes to swearing in the workplace. For example, minor slip ups will not usually prompt the need for employer intervention, especially if that kind of language is not uncommon in that particular workplace. If the audience of the language is a person (supervisor, colleague, customer, client) the swearing should be viewed in relation to whether it was said jokingly or offensively and the type of working relationship they share. For instance, an employee showing dissatisfaction with a customer through swearing will almost always be viewed as inappropriate. On the other hand, two employees exchanging friendly banter between them may swear (accidentally!) and it be deemed as OK- ignored then forgotten.
Lessons for Employers
Developing and enforcing a code of conduct or similar type of policy is useful in providing employees with a guide to appropriate workplace behaviors. If you have a zero-tolerance on swearing policy, ensure that the policy is communicated to employees and that offenders know they will be appropriately disciplined.
It is important employers are consistent with their handling of workplace swearing. Inconsistencies may jeopardize an employer’s position if an aggrieved employee were to make an unfair dismissal claim as a result dismissal for swearing in the workplace. Furthermore, an employee might reasonably believe that swearing is acceptable if their manager or supervisors engage in this behavior, so it is preferable to lead by example. Help set the tone and standard of your workplace by keeping swearing out of the conversation.
Knowing your culture is first and foremost. This will inevitably vary from one workplace to another. If this kind of language is common in your workplace or industry, then look at the context to see whether or not it crossed the line. In assessing grounds for dismissal, employers should be vigilant of the gravity of the language, the context in which it was used and whether ‘the punishment fits the crime’.
Horner v Kailis Bros Pty Ltd  FWC 145 (https://www.fwc.gov.au/documents/decisionssigned/html/2016FWC145.htm8 January 2016)
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