Home - ‘Conversational swearing’ justifies blue-collar worker’s dismissal, FWC Commissioner decides

UpdatesAug 28, 2019

‘Conversational swearing’ justifies blue-collar worker’s dismissal, FWC Commissioner decides

Fair Work Commission (FWC) Deputy President Abbey Beaumont had very little sympathy for an “idiosyncratic”, long-serving store person who was dismissed for becoming angry and swearing in a disciplinary meeting.

Fair Work Commission (FWC) Deputy President Abbey Beaumont had very little sympathy for an “idiosyncratic”, long-serving store person who was dismissed for becoming angry and swearing in a disciplinary meeting. Behaviour Deputy President Beaumont described as “repugnant”.

This was even though the HR manager swore in the meeting herself.

Bad blood from the beginning

It was noted in the unfair dismissal hearing that there was “historical antagonism” between the employee and his supervisor “that had simmered for some time”.

The employee had worked for his employer Metcash since 2005. On 23 November 2018 he was asked to attend a meeting with his supervisor later that day to discuss his performance.

In the meeting, the employee recorded the conversation using his mobile phone, purportedly to “preserve” his interests. Deputy President Beaumont found this proposition “preposterous”.

The supervisor had asked him not to record the meeting and told him he was not allowed to use his phone at work, while the employee repeatedly asked for advanced written notice of the meeting so he could organise a representative to attend.

No ‘clocking off’ for store person

After the first meeting, on the employee’s day off, the supervisor sent him a text message to inform him of a second meeting.

The supervisor also called him three times without leaving a voice message.

While being contacted outside of work hours, unless it is an emergency, is bothersome for many employees – and is in fact illegal in France, Deputy President Beaumont thought the opposite.

“[O]n its face informing an employee of a meeting on his or her day off does not appear to be contentious,” she said.

Responding to the employee’s union representative’s submission that making repeated calls to the employee on his day off constituted harassment, she dismissed this as “absurd”.

“I find that [the supervisor’s] conduct in attempting to contact [the employee] to notify him of a meeting, notwithstanding it was on [the employee’s] day off, in no way constituted harassment, or unreasonable conduct,” Deputy President Beaumont said.

She did however acknowledge that the out-of-hours contact had “upset” the employee and seemed to have “fuelled discontent in the meeting that followed”.

Angry words exchanged

In the following meeting, which the employee attended with his union representative, the employee expressed his frustration with the supervisor not giving him a request for a meeting in writing and then sending him a text message instead.

The employee told the supervisor and the HR manager who was also present that it was not appropriate for him to be contacted outside of work hours.

But the supervisor argued that he was within his rights to call him at any time.

This angered the employee further.

“[I]f you ever harass me out of work hours again, I will tell you exactly what I think of you and your mother,” the employee responded.

The supervisor walked out and the meeting continued in his absence.

In the unfair dismissal hearing, the employee accepted that the reference he made to the supervisor’s mother was “inappropriate”, although he said he did not swear at the supervisor or the HR manager, but rather “swore in conversation”.

While the HR manager admitted she swore once in the meeting, both the supervisor and HR manager submitted that the employee’s “discourse was laden with expletives”.

After the meeting, the employee was suspended on full pay while the employer conducted an investigation. He was dismissed about two months later.

Employee’s “repugnant” conduct justified dismissal

The store person’s union representative referred to the worker as “an idiosyncratic employee with a long history of unconventional behaviour, which the company had always tolerated” and submitted that “the conduct and behaviour the company expects of [the store person] had always been different to that expected of other employees”.

Deputy President Beaumont dismissed this.

“I am satisfied that [the employee’s] misconduct was manifestly serious and in clear breach of the obligations he had under the Code of Conduct, Metcash’s Use of Electronic Devices Policy, and the instructions that had been provided to him by [the supervisor],” she said.

“The fundamental issue plaguing [the employee] was that his conduct manifested a complete lack of respect for [the supervisor] and [the HR manager].

“[The employee’s] conduct was repugnant to the employment relationship and was sufficiently grave to justify summary dismissal.”

Deputy President Beaumont concluded that the employee’s dismissal was not harsh, unjust or unreasonable and dismissed his unfair dismissal application.

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