Offending angels: on swearing in the workplace

When is it OK to discipline an employee for swearing in the workplace?

Everyone has done it. Whether in a fit of rage, while watching a close sports game or experiencing pain, the occasional expletive is part of a standard vocabulary. But what happens when such language is uttered in the workplace? At what point does friendly banter or light-hearted self-criticism become a breach of the public service code of conduct?

The answer is no longer as simple as it might once have been; coarse language has become increasingly commonplace in society. As a fair work commission explained last year, “there is no doubt that workplaces are more robust in 2015, as they relate to the use of swearing, than they were in the 1940s”. Drawing the line between acceptable and unacceptable conduct is increasingly difficult.

Two recent private sector cases highlight this uncertainty. In Sayers v CUB Pty Ltd, a Carlton & United Breweries employee told a colleague “you are nothing but a dirty gringo c—” and “any place, any time, you name it, you are going down”. After he was sacked on the ground of serious misconduct, Mark Sayers applied for unfair-dismissal relief.

Despite a rather creative application, which asserted that “gringo” was not intended as a racist slur because the target of the comment was South American, and the term is traditionally used by South Americans to disparage North Americans, Sayers’ claim failed. Fair Work Commission deputy president Richard Clancy observed that “there is no place for behaviour in the workplace that combines threats of violence, racial slurs of such an offensive and degrading nature, and such inappropriate abuse and offensive language”.

In contrast, in Goodall v Mt Arthur Coal Pty Ltd, a mining truck operator won reinstatement after his dismissal from BHP Billiton’s Hunter Valley coal mine. Jodie Goodall had engaged in “banter and chat” over a radio system “as a means of dealing with fatigue” towards the end of a 12½-hour night shift. This “banter” included comments that a colleague was…Read more.

First published in the Canberra Times, July 2016.