The Case

(2018)

ICH had employed Mr Gosek for approximately 11 years. Mr Gosek was also lodge President for the Construction, Forestry, Mining and Energy Union (CFMEU). He represented a member of the CFMEU who had made a complaint about a manager at ICH. ICH found that the allegations by the member were not substantiated.

On 4 October 2016, Mr Gosek, went to the pub and became intoxicated. He was not rostered to work. However, during the drinking session he sent an offensive text message to seven employees and his supervisor to express his disappointment in their participation in the investigation.

The employees rang Mr Gosek upset over the text. Mr Gosek could not clearly remember the conversations, but agreed he had heated discussions with them and had used further inappropriate language, swearing and calling them “dogs”.

ICH dismissed Mr Gosek who then commenced unfair dismissal proceedings.

The Verdict

At first instance, the FWC found that while there was a valid reason to terminate Mr Gosek’s employment, the termination was unfair given that the type of language used by Mr Gosek was commonly used on site.

ICH successfully appealed the decision to the Full Bench of the FWC. The majority found that the totality of the conduct needed to be considered, just not the fact Mr Gosek swore at other employees.

It said, “The conduct involved an expletive filled tirade which included threats directed at employees because they participated in an investigation.” This meant the conduct was far more serious than just a single incident of swearing.

The Lessons

Swearing in the workplace can be sufficient grounds for dismissal provided:

• the employee is employed in an industry or workplace where swearing is not the norm (even if that is the case, dismissal is only possible if an employer makes it clear that swearing will not be tolerated);
• employees have been trained and educated in appropriate and inappropriate language in the workplace, and the consequences of breaching this direction;
• there have been warnings for any prior incidences of inappropriate language or conduct;
• the context and use of the language goes beyond swearing and is aggressive or threatening; and
• the process of investigating the swearing incident and if appropriate, dismissal, is fair and reasonable in the circumstances (e.g. the employee has an opportunity to respond and explain what occurred, mitigating factors such as provocation are considered and the employee’s length of service is taken into account).

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.