Swearing and its context
Being dismissed for swearing in the workplace may seem a harsh outcome for an employee. But when it comes to using vulgar language at work, a dismissal really hinges on three factors. Firstly, the context in which the swearing took place. Secondly, what was actually said. And thirdly, the tone and manner in which the employee said it. Can swearing in the workplace get you dismissed? is a great topic to discuss, its relevant to what goes on in the workplaces today.
There have been countless cases heard by the Fair Work Commission where employees have been dismissed for swearing. And in many of these cases, the circumstances around these three factors differ wildly. Some employees have had their unfair dismissals upheld, while others have been reinstated or received compensation.
In this article, we’ll look at a fiery unfair dismissal case involving a foul-mouthed wharfie in Western Australia. Grant Rikihana vs. Mermaid Marine Vessel Operations Pty Ltd. This case will help you understand the contextual factors that the Fair work considers when ruling on unfair dismissal cases involving swearing. But we must warn you, if you are sensitive to extremely vulgar language, you may want to proceed with caution.
Events leading up to dismissal: Wharfie lands in hot water after telling off colleague
Grant Rikihana had been employed as a dockhand for Mermaid Marine Vessel Operations in Dampier, Western Australia since 2010. From 2012 until his dismissal in September 2014, he had a history of repeatedly and aggressively swearing at his colleagues and superiors. In addition to disobeying directions.
The first incident took place in April 2012. Mr Rikihana was at the gate of the Mermaid supply base when a security officer asked him to show his induction card. To this request, Mr Rikihana simply replied, “f**k off”. Mr Rikihana was subsequently investigated by Mermaid for the incident and was handed a letter as a formal record of his inappropriate conduct.
The second swearing incident
In September 2012, Mr Rikihana used the same obscenity as he had in April, but this time at his supervisor. During a meeting at the start of the day, the supervisor told the crew that untreated sewerage would be brought onto the wharf. When Mr Rikihana said that the company had to provide a safe working environment, the supervisor told him that they were obliged to carry on working. At this point, Mr Rikihana told the supervisor to “f**k off.”
The employee willfully disobeys his superior
In December 2012, Mr Rikihana was involved in an incident where he didn’t swear, but that played a significant part in his eventual dismissal. It took place while attending to an emergency involving a Mermaid worker who had crushed his hand on the wharf.
As the designated certified safety representative, Mr Rikihana went to the scene of the accident. However he arrived some 2.5 hours after the incident happened. And when he got to the wharf, he was stopped at the gate by the Mermaid Supply Base manager for not having a valid permit and not wearing protective gear.
Despite this, Mr Rikihana attempted to walk to the site of the accident, disregarding multiple warnings not to do so by the manager. He was then physically prevented from attending the site by the manager and another colleague. After the incident, Mermaid handed Mr Rikihana a written warning that warned him that he was one incident away from dismissal, concluding thusly:
“You are hereby on notice that any further indiscretions on your part in relation to your behaviour in the workplace or in relation to your work performance generally will likely result in the termination of your employment.”
“Get the fat lazy c*** to do it.”: The third swearing incident
In February 2013, Mr Rikihana was directed by the Mermaid Leading Hand (i.e. a senior manager) to assist one of his colleagues. In response to this direction, Mr Rikihana told the Leading Hand in a loud and aggressive tone to “Get f**ked”. Regarding another employee, “Get the fat lazy c*** to do it”. The Leading Hand simply walked off, saying that he had had enough of Mr Rikihana’s behaviour.
Despite the prior warning that one more incident of inappropriate behaviour would result in his dismissal, Mr Rikihana was instead emailed a written warning.
“You’re a d**khead.”: A final foul-mouthed tirade ends in the employee’s dismissal
On the morning of 4 September 2013, Mr Rikihana was involved in yet another swearing incident that finally ended in his dismissal. The incident took place during a meeting in which safety issues were discussed among a crew of workers. At the meeting, a hazard observation card had been brought up, on which an issue was identified. The Leading Hand mockingly derided the issue on the card, stating “You can’t be serious. This is not a serious issue.”
It was then that Mr Rikihana said to the Leading Hand, “You’re a d**khead. You are supposed to be a Leader of this group. You’re a c**k.” The duo engaged in a heated back and forth. The Wharf Supervisor present at the time alleges that Mr Rikihana was very aggressive in criticising the Leading Hand, and that he had to step in to stop the argument. He says that Mr Rikihana then ceased speaking loudly at his superior, but then uttered “d**khead” under his breath. This initiated another argument, in which the Wharf Supervisor had to once again intervene.
The Leading Hand subsequently made a formal complaint about Mr Rikihana, and the latter was questioned by Mermaid. After an investigation into this incident, on 13 September Mr Rikihana was dismissed by Mermaid for his continued disregard for the company’s behavioural standards.
The employee makes an unfair dismissal claim with the Fair Work Commission
In his unfair dismissal claim, Mr Rikihana didn’t deny that he swore multiple times in the workplace. He argued that swearing wasn’t out of the ordinary at Mermaid. It’s for this reason that he argued that he hadn’t breached the company’s behavioural standards and therefore his dismissal was unfair.
Mr Rikihana also told Fair work that he wasn’t notified of the reason for his dismissal, nor was he given the opportunity to respond to this reason. In addition, he claimed that Mermaid hadn’t followed the proper disciplinary procedure.
Mermaid, however, argued that Mr Rikihana’s dismissal was valid as he had breached Mermaid’s code of conduct. It rejected the claim that swearing was not out of the ordinary at the company. Mermaid also argued that Mr Rikihana’s inappropriate behaviour wasn’t limited to swearing, but also included a level of aggression and intimidation towards others.
Was the employee’s dismissal unfair? The Commission makes its decision.
Commissioner Bruce Williams found that swearing was in fact a regular occurrence at Mermaid. Stating that it was part of the “everyday descriptive language” used at the dock. However, he found that “swearing aggressively and maliciously at another person,” as Mr Rikihana had done on multiple occasions, wasn’t a common occurrence and was “totally unjustified and inexcusable.”
Commissioner Williams found that Mermaid had in fact notified Mr Rikihana of the reason for his dismissal and gave him the opportunity to respond to this reason. He also found that the employer hadn’t breached its disciplinary procedure.
The Commissioner ultimately found that Mr Rikihana’s dismissal wasn’t harsh, unjust or unreasonable, and ruled that it was fair. “This misconduct was another example of behaviour [Mr Rikihana] had engaged in over the course of his employment where he had responded to persons in authority in a contemptuous and aggressive manner without justification,” said Commissioner Williams.
“Mr Rikihana had been put on notice by his employer on a number of occasions that this was not acceptable. He was aware his actions were contrary to the behavioural expectations of his employer as detailed in its code of conduct and when asked to account for his actions he was not honest in his responses to his employer. Mr Rikihana’s dismissal in all the circumstances was not surprising and certainly was not unfair.”
Swearing isn’t always a valid reason for dismissal, however
The aforementioned case teaches us that context matters when an employee is dismissed for swearing in the workplace. Mr Rikihana had a history of swearing, in addition to doing so aggressively at his colleagues and superiors. This ultimately swayed the Fair work Commission to rule that his dismissal was fair.
Where swearing isn’t a sufficient reason to dismiss an employee.
However, not all cases turn out like this. In a 2015 unfair dismissal case, Smith vs Aussie Waste Management, a garbage truck driver swore at his manager after being questioned about the time it was taking to perform his duties. The driver launched into a tirade of obscenities in which he told his manager. “you dribble sh*t, you always dribble f**king sh*t.” The employee was subsequently summarily dismissed for serious misconduct.
However, at his unfair dismissal hearing, the Fair work found that while the driver’s behaviour wasn’t acceptable, his swearing wasn’t sufficient reason to dismiss him. In coming to the decision, the Commission considered a number of contextual factors. This included that the language used by the driver wasn’t uncommon in the workplace. Also, that the conversation wasn’t overhead by other employees. And finally, that the driver didn’t intend to undermine his manager’s authority.
Conclusion to Can swearing in the workplace get you dismissed?
Have you been dismissed for swearing?
As you can see swearing in the work place and the outcome that should apply is not straight forward. If you feel that you have been unfairly dismissed for swearing or about to be. A Whole New Approach can guide you through the process of making a claim with the Fair Work Commission. We are not lawyers, but the nations leading workplace advisors and commenators. Our team of employment experts can assess whether you are eligible for compensation. They will streamline the process of submitting an unfair dismissal application. Ring us for all workplace situations, including abandonment of employment, casual employee matters, workers rights. Toxic workplace culture and serious misconduct caused by swearing.
Call us today on 1800 333 666. For a free, confidential discussion about your situation and how we can help you seek justice.