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March 2015

Is it okay to swear at your boss?

The need for Employers to follow “proper process” in all respects.

Mr G was employed as a forklift driver for a period of three years up to his dismissal for serious misconduct. Mr G was dismissed for “using threatening language” towards his supervisor. Mr G’s supervisor had asked him to check a delivery note as part of his job; Mr G wanted to have his smoko first and accordingly he told his supervisor to “go f*** yourself”.

It was not the first time that Mr G had spoken this way. Last time he said such words, he was taken aside and told that his language was unacceptable. This time however the employer looked at their employees handbook which described threatening language as serious misconduct and decided that Mr G’s language amounted to threatening language. It is to be noted that the same handbook described abusive language as being misconduct. As you should all be aware, serious misconduct allows the employer to dismiss an employee, misconduct does not.

The employer then began a process whereby it invited Mr G to an investigation meeting. Mr G acknowledged that he had used the words. There is a dispute as to whether Mr G acknowledged that he accepted that the words were threatening. Of note, is the fact that the employer did not explain to Mr G why the employer considered the language to be threatening, rather than abusive.

Following the investigatory meeting the employer concluded that it had sufficient evidence to conduct a disciplinary meeting and followed a process of inviting Mr G to a disciplinary meeting, putting the allegation to him (with his representative present), considering his response and then deciding to dismiss him.

Mr G brought a personal grievance to the Employment Relations Authority. The Authority found as follows:

  • That Mr G had been unjustifiably dismissed. This is because it had never been explained to Mr G why the language was considered threatening. Furthermore, the supervisor gave inconsistent evidence as to whether he ever felt threatened, or unsafe.
  • That the swearing did not justify dismissal and that a reasonable employer would have given Mr G a written warning for his misconduct for abusive language.

The employer was ordered to pay Mr G a total of $13,059, being compensation for hurt and humiliation, lost wages and a contribution to his legal fees. The award was reduced from a larger sum by 20% to make an allowance for Mr G’s misconduct in using such inappropriate language in the workplace.

On the face of it you could conclude that the employer had followed a proper process. After all, the employer held:

  • an investigatory meeting;
  • a disciplinary meeting;
  • ensured adequate notice was given to Mr G of the allegations (including giving him copies of witness statements);
  • ensuring Mr G was made aware of the seriousness of the consequences of the disciplinary meeting; and
  • ensuring Mr G had a representative present.

However, despite its careful adherence to a seemingly proper process, the employer failed to adequately put the allegations to Mr G by failing to explain to him why they had elevated the behaviour from misconduct (for abusive language) to serious misconduct (for threatening language). The failure to put the allegation fully robbed Mr G of the ability to answer the accusation that the behaviour was threatening.

This relatively straightforward mistake ultimately cost the employer $13,000.00 together with their own legal costs. The lesson to be learnt from Mr G’s case is for employers to ensure the following:

  • Carefully identify the misbehaviour. Consider whether it is misconduct or serious misconduct.
  • Ensure the alleged misbehaviour is properly put to the employee so that their response can be given.
  • Always follow a proper process.

Our strong recommendation is to seek our advice at the earliest opportunity to avoid subsequent problems.