Thinking | 23 May 2018

Swearing and unfair dismissal: context is crucial for employers

A recent case illustrates how a court may take an employee’s personal circumstances into account after an electrician sacked for using abusive language was reinstated following an unfair dismissal.

In October 2016, an employee drunkenly texted several colleagues, then made threatening and abusive phone calls to them outside of the workplace. The next day, the employee apologised to his colleagues and explained he was experiencing mental health issues.

In January 2017, the employer terminated the employee’s employment for breaching the code of conduct by using “abusive language”.

In April 2018, the Fair Work Commission considered the whole context of the conduct to find a “perfect storm” of factors “caused an otherwise reasonable man to behave … out of character”, being that he:

  • was dealing with the death of a family member
  • was experiencing severe depression
  • had been drinking heavily at the time (and therefore the conduct was “not wilful”).

The Commission, therefore, held the dismissal was harsh and ordered reinstatement. This decision reminds employers that:

  • even if swearing is accepted in your workplace, dismissal may be valid if swearing is part of a broader context of intimidation and threats
  • an employee’s intoxication, medication, mental illness, lack of prior misconduct and apology are all relevant in determining whether a dismissal was harsh
  • a one-off outburst will not generally warrant dismissal and
  • following clear investigation policies will provide protection to employers seeking to discipline employees in similar circumstances.

Illawarra Coal Holdings Pty Ltd T/A South32 v Gosek [2018] FWCFB 1829 (6 April 2018)

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Karl advises his clients in adverse action claims at the Fair Work Commission, implementing and negotiating enterprise agreements, unfair...

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