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  • Unfair Dismissal: Mark Baldwin v Scientific Management Associates (Operations) Pty Ltd [2014] FWC 5174

Unfair Dismissal: Mark Baldwin v Scientific Management Associates (Operations) Pty Ltd [2014] FWC 5174

Swearing in the Workplace

The Fair Work Commission (FWC) has found that the summary dismissal of an employee for swearing at a manager was not harsh, unjust or unreasonable. The FWC differentiated between swearing in the workplace and swearing directly at a co-worker. The employee’s dismissal was justified in the circumstances despite the fact that using expletive language was the norm in the workplace.

Facts

Scientific Management Associates (Operations) Pty Ltd (Scientific Management) is a contractor for the Australian Defence Force and provides training programs to its members. Mr Mark Baldwin was employed by Scientific Management to provide training to defence force personnel in vehicle technology. The Program Manager of Vehicle Technology was Mr David Roberts and was Mr Baldwin’s direct manager.

Mr Baldwin was expected to return back to work on 13 January 2014 after the shutdown of the business during the Christmas and New Year period. He attended work for an hour on 13 January with the hope of speaking to Mr Roberts about extending his annual leave. However, Mr Roberts was on leave until 20 January and could not be contacted. Mr Baldwin then took it upon himself to decide that he would not attend work for the rest of the week.

When Mr Roberts returned from leave on 20 January he was informed that Mr Baldwin had not attended work for the past week and had not turned up that day. Mr Roberts telephoned Mr Baldwin and directed that he attend work.

Mr Baldwin attended work and was invited to meet with Mr Roberts. During the meeting, Mr Roberts advised Mr Baldwin that he would have to fill in a leave application form. Mr Baldwin then became aggressive and called Mr Roberts words which by any standard, are offensive and obscene. Mr Baldwin, whilst still swearing at Mr Roberts, violently slammed a timesheet on the desk. Mr Roberts became concerned for his own safety and feared that Mr Baldwin might hit him.

The following day Scientific Management summarily terminated Mr Baldwin’s employment.

Mr Baldwin claimed that the dismissal was harsh, unjust and unreasonable as swearing was common place in the working environment and he had not been warned on a previous occasion that swearing was not acceptable in the workplace.

Decision

The FWC found that:

“there is… a qualitative difference between swearing in the workforce per se and swearing directed to one’s manager (or to another employee) which is not only offensive but highly personalised.”

The language which Mr Baldwin used was crude and extremely profane and was directed at Mr Roberts. Mr Roberts was justified as having concern for his own safety.

The FWC found that the conduct which occurred and the context in which it occurred amounted to misconduct and that it was sufficiently serious to justify summary dismissal. Mr Baldwin’s application for an unfair dismissal remedy was dismissed.

This case highlights that employees should take particular care if they swear in the workplace. There is a difference between generally swearing in the workplace and swearing at a co-worker. Employers likewise should take note in ensuring that employees are informed as to whether offensive swearing will amount to misconduct and should warn employees who tend to swear that it is not acceptable workplace behaviour.

 * PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training.  They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.