Employee dismissal for swearing at manager considered 'unfair'
Employee dismissal for swearing at manager considered 'unfair'
Fair Work Australia (FWA) has ordered that an employee who was terminated after swearing at his manager be reinstated to his former position after he filed an unfair dismissal application.
The employee was an armed guard responsible for transporting cash to and from clients and ATMs. He had been employed for 11 years, and had been a team leader for 3 years.
In December 2011, the employee had been allocated a work vehicle that had a faulty indicator. He angrily walked out of a staff meeting to arrange for the indicator to be fixed. When his manager followed him out, and asked him to return to the meeting, the employee replied "get f***ed".
Later that day, the same manager approached the employee in the lunch room, and asked him what was wrong. The employee responded by pointing aggressively to the roster, and said "f***in roster", indicating that he had been rostered on as an Armoured Vehicle Operator and not as a team leader. The employee was terminated the following day.
FWA considered the following:
- The employee had not received a single warning in 11 years of service
- Although the company had a 'zero tolerance' policy on swearing in the workplace, it was never enforced, and swearing did occur at that workplace
- The language used by the employee was not overheard by other employees, so as to undermine the manager
Furthermore, in relation to the employee not following a lawful direction of his manager, FWA considered previous unfair dismissal cases, which demonstrate that for a single act of disobedience to amount to serious misconduct, it must be of a magnitude which showed that the employee was repudiating the contract of employment or one of its essential terms.
FWA found that, in all the circumstances, the dismissal was "harsh", and ordered that the employee be reinstated, and that the employer compensate him for his lost wages between the dismissal date and the reinstatement date (minus six weeks' wages).
This case demonstrates that in considering whether to terminate an employee for breaching a workplace policy, an important factor for employers to consider is whether previous breaches of the policy have been enforced in the past.
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