Sworn Off Personal Grievances

A lot of us would like to tell our employers what we really think of them in colourful language, but equally most of us don’t because we know this might lead to dismissal.

Might lead to dismissal, not a blanket will lead to dismissal.  Seriously?  I hear you ask.  How can you keep your job after swearing at your employer?  A lot will turn on the workplace’s culture. For example, employees on a construction site will typically use more robust language than employees in a primary school and therefore the language expectations and what is acceptable may differ in different industries.

Also, times change and different words become more or less offensive depending on the cultural mores prevailing at the time. For example, New Zealand was scandalised when All Black Peter Jones exclaimed “I’m absolutely buggered” during a live broadcast after a test win over the Springboks in 1956. Compare that to Dan Carter’s comments to referee Nigel Owens during the Rugby World Cup final in 2015. Proclaiming himself to be “f***ing tired”, no-one batted an eyelid.

A good example of the Employment Relations Authority considering a workplace’s culture in determining whether bad language justifies dismissal is the recent case of Waihape v AFFCO New Zealand Ltd [2017] NZERA Wellington 13.

The employee worked in a tannery. Traditionally, workplaces where animals are slaughtered and where animal products are prepared are places of, shall we say, robust discourse and crude language.

In the Waihape case, Mr Waihape worked in a tannery in Napier. He had worked there since 1982 and he was the union site secretary.  The incident leading to dismissal occurred on a Saturday and involved a dispute over whether particular work should be undertaken. Mr Waihape alleged his supervisor said, “What the f… are you doing? Get back on the Sammer”. The Sammer appears to be a type of industrial machine for processing non-perishable items.

Mr Waihape says he responded by saying, “For f…’s sake Darren, what are you on about?” He said he made this comment because it was common knowledge that non-perishable items were not processed on Saturdays.  The supervisor’s account was that Mr Waihape responded to his challenge about why staff were preparing to finish work by saying, “Who the f… do you think you are”

Mr Waihape was dismissed for a variety of reasons related to this incident and the Authority found the dismissal was unjustified. In relation to the swearing, the Authority found this did not justify dismissal because swearing in this particular workplace was commonplace.

It found, “It is well established that an employer will fail to justify a dismissal where communications do not appear to be greatly out of character with others apparently condoned by management in the workplace.”

Mr Waihape was reinstated and he was awarded lost wages and compensation for humiliation, loss of dignity and injury to feelings.  This story has a happy ending, as newspaper reports say Mr Waihape returned to work and shook hands with all involved, determined to put the issues that led to his dismissal behind him.

The Authority’s determination is unsurprising. It is hard to see how a robust exchange of views in a workplace where swearing is common would justify the dismissal of a worker with 35 years’ service.

On the other hand, a teacher who swears may be in hot water. The New Zealand Teachers’ Disciplinary Tribunal records a recent decision where a teacher who repeatedly swore at students lost her job. The teacher apparently made comments such as “if you are not going to sing you can f*** off back to class” and “shut the f*** up” to students. The issue for the Tribunal was not whether the dismissal was justified, but whether the teacher should be allowed to continue to teach. The Tribunal cancelled the teacher’s registration, censured the teacher and ordered her to pay 60 percent of the costs incurred by the Complaints Assessment Committee in bringing the claim. Had the teacher brought a claim before the Employment Relations Authority challenging the dismissal, it seems it would have been difficult for her to succeed.

These cases illustrate the need to consider “in all the facts and circumstances at the time” when applying the s103A test for a justified dismissal.  It is not enough for an employer to have a blanket position; we don’t tolerate swearing, but rather the swearing needs to be considered in view of the circumstances at the time. A lot will depend on what is said, along with the context and culture of the workplace.

While dismissal or disciplinary action will not always be open to the employer, we would also caution against considering the more traditional route of washing the employee’s mouth out with soap! While it is highly unlikely anyone would actually attempt this in the workplace, worst case scenario it could result in a charge of assault.  While soap is involved, the employer definitely would not have “clean hands” in any sort of equitable context.  The moral of the story is even if your employee has a dirty mouth, you should take a squeaky clean approach to dealing with it.

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