Standards of behavior expected of employees can be a difficult thing to navigate, particularly behavior that leads to termination of employment. Whether words are said in a moment of frustration, to add emphasis to a message, or over a series of events, one thing is clear from recent Fair Work decisions – tread very carefully when it comes to profanity in the workplace!

Treen v Allwater – Adelaide Services Alliance [2016] FWC 2737

A cleaner was reinstated to his position after being terminated for an offensive message on a colleague’s phone calling him a “f—king scab”. The Fair Work Commission agreed the “grossly inappropriate” conduct was a valid reason for dismissal, but said it was a stand alone event in the employee’s 7 years of otherwise good conduct. The FWC found the termination was a disproportionate outcome and ordered reinstatement but refused to order wages compensation for the 20 weeks since the dismissal.

Hain v Ace Recycling Pty Ltd [2016] FWC 1690

The Fair Work Commission found that a company had a valid reason for dismissing an employee after a verbal altercation with its Chief Executive that involved aggressive and inappropriate language. The company dismissed the employee by text message, and failing to give procedural fairness, along with it “systematically ignoring every opportunity to submit a response to the unfair dismissal claim”. The employer was ordered to pay compensation.

Hennigan v Xmplar Building Solutions Pty Ltd [2016] FWC 2938

The Fair Work Commission upheld the summary dismissal of a worker who repeatedly swore and made threats to his employer, and was previously given a previous written warning.

What does this mean for employers?

These decisions highlight that employees cannot behave poorly without consequences. Conduct which has the potential to cause financial and reputation damage to the employer, or that is repeated and malicious, can be a valid reason for dismissal.

When disciplining an employee, employers must think carefully about the issues and follow a fair process.

Employers should also consider clarifying expectations and standards of behavior in a Code of Conduct and ensure this Code is clearly communicated to all staff.

Contact the McKays Employment Law team

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