The Fair Work Commission recently determined that a “qualitative difference” exists between general swearing in the workplace (that is not directed at a person) and swearing at a colleague (that is offensive and highly personalised).
In Mark Baldwin v Scientific Management Associates (Operations) Pty Ltd  FWC 5174 (1 August 2014), a worker claimed unfair dismissal after he was dismissed for misconduct without prior warning regarding his behaviour or swearing. The worker believed his behaviour was not out of line and did not constitute misconduct given that swearing was common place in the working environment.
However Deputy President Val Gostencnik stated that it was hardly surprising the worker’s manager felt threatened for his own safety given the worker’s aggressive body language/conduct in the presence of his manager (scrunching up a timesheet and slamming on his manager’s desk) and the offensive swearing directed at his manager.
The manager had exercised reasonable management action in holding a meeting with the worker to discuss the unauthorised leave the worker had taken during the previous week.
Deputy President Val Gostencnik found the ‘conduct inconsistent with the continuation of an ongoing employment relationship between the [employer] and the [worker]’ and hence there was a valid reason for the worker’s dismissal.
Tips for Preventing Aggressive Conduct and Swearing in the Workplace
- Ensure the organisation’s misconduct policy includes the following examples of misconduct:
– offensive swearing at a colleague or manager
– aggressive conduct that could reasonably make a colleague feel threatened for their safety
- Ensure workers are aware that conduct which damages their relationship with the employer (i.e. is inconsistent with the continuation of their employment contract) could lead to the termination of their employment contract.
- Communicate to workers that it is reasonable management action for a manager to ask a worker to account for unauthorised leave from work (where unauthorised leave is clearly explained in the organisation’s leave policy).