Do you find yourself wondering whether something you've done at work could lead to dismissal?

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Unfortunately, there are no universal answers to this question. Employment law requires a careful evaluation of all circumstances to determine fairness. What may justify dismissal in one case for a specific behaviour might not be applicable in another situation involving similar conduct.

 

Swearing at work, for example, falls into one of those grey areas. While some employers may consider it fair to dismiss an employee for using coarse language, others may not. It's important to understand that it's not just your conduct that matters in such cases.

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It's essential to recognize that your employer has the freedom to dismiss you at any time and for any reason, but that doesn't necessarily mean it's lawful or fair. If you believe you've been unfairly dismissed, you have the right to challenge it and seek remedies. To determine fairness, the Employment Relations Act 2000 provides a test that asks whether a fair and reasonable employer could have made the same decision in the circumstances. While this might sound like circular reasoning, the law assumes that we collectively understand what constitutes fairness without further explanation. However, our personal interests can sometimes cloud our judgment of fairness, necessitating a degree of objectivity.

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In cases of potential dismissal for misconduct, such as swearing, two key aspects are considered: whether there was a fair reason to dismiss and whether the decision followed a fair process. Assuming your employer follows a fair process, the question is whether swearing in the workplace can be a fair reason for dismissal. Fairness in this regard involves considering whether you were aware that swearing was unacceptable to your employer and whether there were any circumstances that could justify your behaviour from a human perspective.

To demonstrate that they do not tolerate swearing in the workplace, employers might implement policies and enforce them when necessary.

 

In workplaces where swearing is commonplace and not addressed, it may be less likely for employers to criticise employees for swearing. Additionally, the employer must take into account the circumstances surrounding the swearing incident. Swearing out of agony after injuring yourself, for instance, may be understandable, but directing offensive language at a colleague, client, or supervisor might be less acceptable. In such cases, the employer should consider if there were underlying factors contributing to the behaviour, especially if it was out of character for the employee with an otherwise clean work record.

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The following examples highlight situations where an employee was fired from a job for swearing, but it was alter found that they wrongfully dismissed.

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Racheal Ferrari - Flying Bean 

A barista at The Flying Bean coffee cart in Petone won $16,000 from her former employers after being fired for using foul language. Rachel Ferrari had a harmonious employment but was asked to be careful in how she spoke to clients due to occasional swearing in front of customers. She argued that her friendly banter contributed to customer loyalty. In 2018, a customer complained about her using foul language, leading to the coffee cart considering dismissal. Ferrari filed a personal grievance, claiming insufficient information to respond to the complaints. The Employment Relations Authority acknowledged her full-bodied language but also recognized her as a "rough diamond."

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Henry Waihape - AFFCO 

Meat processing company Affco was ordered to pay over $6000 as compensation for humiliation and unjustified dismissal to a former worker, Henry Waihape. The Employment Relations Authority ruled in Waihape's favour and ordered his reinstatement after he was dismissed by Affco from its Napier tannery for alleged misconduct, including incorrect processing of meat. The authority upheld Waihape's case for unjustifiable dismissal because he wasn't given an opportunity to explain his actions. The dismissal arose from a disagreement between Waihape and his supervisor over the order of work tasks and the use of profanity. The authority noted that swearing was common in the workplace and highlighted issues of disparate treatment, as other staff who left early were not penalised.

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