While it may not be condoned or what would ordinarily be deemed to be acceptable professional behaviour, swearing can and does happen in the workplace. This may be due to an employee becoming frustrated, where an employee accidentally hurt themselves and, occasionally, when an employee becomes angry with a colleague.
While it is widely accepted that swearing is not professional and can be quite offensive to others, there is no blanket rule that provides for swearing to be a justifiable reason for termination. Rather, the determination as to whether swearing in the workplace warrants a serious disciplinary sanction usually depends whether the swearing is being used to add more ‘colour’ to a statement or whether is it is used as part of an aggressive verbal attack against another person.
The culture of the workplace will also be taken into consideration when determining whether an employee’s use of swearing has been inappropriate, as some workplaces are more likely to be exposed to swearing than others.
A case heard before the Fair Work Commission in 2015 (Smith v Aussie Waste Management Pty Ltd) highlighted the requirement for employers to set their ‘profanity radar’ against the backdrop of their respective industries.
In this case, an employee (Mr Smith) was sacked for swearing at his supervisor over the phone during a series of two phone calls where Mr Smith and his supervisor were arguing about whether Mr Smith’s rubbish truck was faulty.
While it was acknowledged by the Commission that Mr Smith’s conduct was unacceptable, the Commission determined that the employee should not have been sacked for this instance of conduct due to:
· The nature of Mr Smith’s industry;
· The fact the swearing occurred in a one-on-one conversation;
· The swearing had not formed part of a pattern of conduct by Mr Smith designed at undermining his supervisor.
Furthermore, the Commission found that “it is not uncommon for bad language to be used in the workplace in this industry or other similar industries.”
It was found that Mr Smith’s termination was harsh due to the swearing not forming part of some physical or verbally violent attack on his supervisor.
The termination of an employee for swearing alone is likely to be deemed to be too harsh a sanction in situations where an employee uses swear words as adjectives to make their statements more colourful or where an employee swears out of frustration in workplaces that generally tolerate swearing.
While there is no definitive line that can be drawn on when swearing would be automatically justify the termination of an employee, such action will be more valid in instances where the swearing:
- Occurs repeatedly or in a particularly obscene manner;
- Forms part of a verbal or physical attack directed at another employee;
- Forms part of a pattern of conduct attempting to undermine another employee.
The context, the type of swearing and the audience are all important factors in determining whether swearing in the workplace is inappropriate. Additional things to consider when addressing workplace swearing include:
- If the organisation has a ‘no swearing’ policy, enforce it consistently against all employees who swear in the workplace.
- Whether the employee’s swearing occurred during a general discussion, or whether a tirade of swear words was directed against an employee.
- Consider the audience to whom the swearing is being directed. Is the audience likely to be offended? Will the swearing damage the reputation of the business?
- How serious or offensive are the swear words that were used?
While it may not warrant termination, as an employer you should not disregard swearing or bad language in the workplace. However, discretion should be used to decide if it has the potential to offend or cause harm to other employees. If this is the case and no disciplinary action is taken, as an employer, you could appear to be condoning this behaviour.
By implementing a clear code of conduct, you can provide guidance to employees as to what is deemed inappropriate and the standards that are expected.