Employees have certain implied obligations to their employers, such as treating them with respect and courtesy.

The recent case of Symes v Linfox Armaguard Pty Ltd [2012] FWA 4789 concerned an employee who was reinstated to his position by Fair Work Australia (FWA) after being fired for swearing at the boss.

Employee swears at boss, leaves meeting and hits roster board

Mr Symes was employed as a crew leader for Linfox Armaguard. In September 2011 he suffered from a work-related injury. In early December he was informed by his supervisor, Mr Hala, that his position would be temporarily changed as his runs were taking him longer due to his injury.

On 15 December 2011 a communications meeting took place during which Mr Symes expressed concerns regarding his revised position. After becoming frustrated he proceeded to leave the meeting. Mr Hala instructed him to return, to which Mr Symes replied "get f****d". Mr Hala claimed that later in the lunchroom, Mr Symes had said that the problem was the "f*****g roster" and that he had then raised his fist and hit the roster board. Subsequently, Mr Symes telephoned Mr Hala and the site manager to apologise. He also wrote a formal apology to Mr Hala.

The next day Mr Symes was informed that he had failed to follow a reasonable and lawful direction, as well as using inappropriate physical violence and abusive language in the workplace. He was dismissed for serious misconduct.

Employee applies to FWA for reinstatement and compensation

Mr Symes applied to FWA seeking reinstatement and compensation for lost remuneration. He stated that a number of factors had contributed towards his frustration. These factors included a general feeling of lack of support from Mr Hala.

He had suspected that Mr Hala had intentionally delayed providing him with his workplace-injury documentation and that his presence in the disciplinary meeting prevented Mr Symes from receiving a "fair go". Mr Symes also submitted that he had had a fight with his wife before arriving at work on 15 December and that employees often left the communications meetings early.

Does bad language amount to misconduct?

Commissioner Cargill focused on the extent to which bad, offensive or abusive language should be tolerated in the workplace and how employees should be disciplined. He stated: "...whether or not the use of bad language is considered to amount to misconduct depends on factors such as context, location, the person it is directed towards and the manner in which it is said..."

The Commissioner stated that while the applicant's language was "totally inappropriate and unwarranted", his workplace is one in which "bad language is commonly used" and the applicant's swearing did not work to undermine Mr Hala's authority.

The applicant did not direct his violence towards a person, but rather an object and was not intending to harm or threaten Mr Hala. Commissioner Cargill determined that whilst Mr Symes' actions contributed to his loss of employment, they did not amount to serious misconduct.

Commissioner Cargill found that Mr Symes was harshly dismissed and that a satisfactory working relationship could be restored with goodwill on both sides. Mr Symes was to be reinstated with some remuneration. However, as a form of penalty, the Commissioner ordered that Linfox not be required to pay Mr Symes in respect of the six weeks between the date of dismissal and the date of reinstatement.

Swearing may not constitute grounds for dismissal

The Symes case can be compared with the past seminal case of Pepper v Webb [1969] 1 WLR 514. Here a gardener was terminated after saying to his employer: "I couldn't care less about your bloody greenhouse and your sodding garden" and refusing to plant. The difference in Pepper's case was, however, that the employee's standard of work had continuously declined over a period, so that a pattern of misconduct, including his language, justified instant dismissal.

One instance of misconduct in the form of objectionable language may not necessarily constitute grounds for immediate termination. The nature of the workplace, the level of offensive language and whether there has been ongoing misconduct should also be considered.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal or financial advice. Please seek your own legal or financial advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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