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The Background…

Over recent months PEEL has conducted a number of investigations which have centred around the ever growing issue of inappropriate language in the workplace. The critical question we are often asked is where do we draw the line? What if it’s a slip of the tongue? What if it’s in jest and humorous v’s abusive and offensive? At what point does the use of inappropriate language justify disciplinary outcomes or even dismissal?

To tackle this issue PEEL reviewed a number of recent cases on this very issue. Read on to review the key learning’s from these cases.

Context is critical…

We are all aware that societal standards have changed. Our use of robust language has become more acceptable in the public arena than perhaps ever before. Despite this being the case, such terminology may still cause offence in the workplace. The context in which language is used is critical when determining whether it is inappropriate or offensive.

In the case, Webster v Mercury Colleges Pty Ltd, an English as Second Language (ESL) teacher was terminated for delivering a lesson about the word “F**k.”  Whilst the Fair Work Commission (FWC) held that the teacher’s profanity in the classroom setting did give rise to a valid reason, the employer prior to termination did not provide the teacher with the opportunity to respond to the alleged incident  or explore the context in which the language was being used.  The Commissioner ruled that the age of the students was not of concern and the lesson was being taught with the intent of educating international students to ensure they did not use the phrase inappropriately. As such the decision to dismiss was deemed to be harsh, unjust and unreasonable. 

The context was also the crucial decider when a union organiser in Leahy v Liquor, Hospitality and Miscellaneous Union, called a junior employee an “arse licker” for sitting next to a senior union official during an offsite conference. The FWC deemed it was inappropriate for a senior employee to address a junior employee in such a manner. The Commissioner also reinforced that “how words and language are used and to whom it is addressed and in what setting is critical as to their meaning and effect.”

Has the language been deemed acceptable within the organisational context?

Workplace policies and disciplinary outcomes are compromised when swearing becomes the norm within a workplace. The recent case of Dalziel v Bilfinger Berger Services Pty Ltd reinforced this principle. In this case a construction worker was reinstated after being unfairly dismissed for swearing at his project manager. The workers language involved the use of the word “F**k” and “F**king.’  As one witness summarised to the Commissioner, “It’s a construction site mate, swearing is everyday language.”  The FWC ruled that the language did not justify dismissal as the use of such language had become commonplace on the construction site and the accused superiors had also used inappropriate language in front of their reports.

Is it against company policy or has it become culture? 

Comprehensive organisational policies which reinforce appropriate conduct, including the use of inappropriate language are crucial. The reinforcement of such polices places employers in a stronger position when taking disciplinary action. A recent example of this was in the Leadbetter v Qantas Airways Limited case. In this matter the FWC determined the employee had gone beyond the grounds of acceptability when he addressed a colleague as a “F**king pommy C***.”  The FWC advised the language “was directed personally to an individual and was demonstratively abusive and in direct violation of the companies Standards for Conduct.”  The FWC upheld the decision, stating there was a valid reason for dismissal.

So what’s the takeout? 

Peel HR are experienced in workplace investigations and can also facilitate workplace investigation training that is aimed at building the confidence and capability of line managers and HR practitioners in applying investigation techniques. For more information or advice around the above issue please feel free to contact us at, email@peelhr.com.au or phone (02) 4963 7373.