A controversial decision by the Fair Work Commission has highlighted the difficulty business operators face in determining where the boundary sits when it comes to unfair dismissal.
My Business’ recent story on a worker being reinstated despite calling colleagues “f---ing c--t” and “c--t dogs” elicited a strong reaction from readers, who said this example challenges the notion of what constitutes fair and reasonable behaviour in the workplace.
“As a business owner, it is hard to reconcile the decision here with the actions required to protect all employees in the workplace. It makes you wonder how experienced the decision-makers are in the real world,” said one reader.
Clare Long, of Norgay HR Consulting, said it is not just the language itself that is problematic for employers, but its delivery.
“Swearing in some workplaces may be common, however language like that is usually associated with aggression. What’s been missed here is that this employee was threatening others – valid grounds for dismissal,” she said.
“I don’t understand this verdict at all and it can only lead to more confusion for SME business owners who are doing their best to navigate the minefield that is our employment legislation framework.”
The commission’s verdict took into account a broad range of factors, including the worker’s personal difficulties at work and at home, as well as the outburst being “out of character”, as well as the fact that the worker subsequently apologised to all affected colleagues who felt intimidated or harassed by his actions.
Central to the verdict was also the validity of the dismissal as a form of disciplinary action, and that a prevalence of bad language in this particular workplace lessened the negative impacts of such terms.
“I have taken into account the fact that this type of language was commonly used in the mine, that there is no evidence that any employee has been disciplined for the use of this type of language in the past, and that Mr Gosek accepted that his language was inappropriate and unnecessary,” the commissioner said.