Employees sometimes want to know whether something they have done is worthy of dismissal.
Unfortunately, there are no stock answers.
Employment law requires an assessment of fairness taking into account all of the circumstances. While it may be fair to dismiss an employee in one case for some particular conduct, it may not be fair to dismiss in another for the same type of behaviour.
Using expletives at work is one of those grey areas – in some cases employers may fairly dismiss an employee for using coarse language, but in others they may not.
In other words, it’s not just the employee’s conduct that matters.
So how can you know whether something you have done at work, such as swearing, is worthy of dismissal?
EMPLOYERS CAN ALWAYS DISMISS, BUT NOT ALWAYS FAIRLY
Let’s start off by acknowledging that your employer is free to dismiss you whenever they wish, and for whatever reason. They have that power.
Yet, though they can dismiss, it does not mean it is lawful for them to do so.
If they dismiss you unfairly, even though you may have lost your job, you will be entitled to challenge the dismissal and seek remedies. These are the repercussions for employers who treat employees unfairly.
The real question then is: when is it fair to dismiss?
WHAT IS FAIR?
There is a test in the Employment Relations Act 2000 that tells us whether a dismissal will be fair or not. That test specifies that an employer’s decision to dismiss must be one that a fair and reasonable employer could have made in all the circumstances.
That is, a fair dismissal is one that is fair. Does that sound like circular reasoning to you?
If it does, that may be because the law on this point appeals to an innate sense of fairness that we all share. It assumes that we collectively know what a fair and reasonable employer might do without the need for further explanation.
However, we cannot simply rely on our own subjective sense of what is fair. Our sense of fairness may be skewed by our personal interests. We need a degree of objectivity when making that assessment.
For assistance, we must turn to what has been considered fair in other cases decided by the Employment Relations Authority or the Employment Court.
The cases have made it clear that we must think about fairness in two ways:
- whether there was a fair reason to dismiss; and
- whether the decision to dismiss was arrived at after following a fair process.
I have written about what amounts to a fair process elsewhere. Let’s assume your employer will follow a fair course in that respect and in this post focus solely on whether there is a fair reason for dismissal.
We can approach this by asking:
- Does the reason given for the dismissal satisfy our innate sense of what is fair?
- Is what we consider fair consistent with what has been considered fair and reasonable in similar cases?
SWEARING: A BRIEF CASE STUDY
Let’s turn back to the question about swearing. Assuming your employer follows a fair process, can swearing in the workplace amount to a fair reason to dismiss you?
You will probably accept it is fair for your employer to dismiss you for misbehaviour in the workplace if:
- you knew the behaviour was not tolerated by your employer; and
- there were no circumstances that made your behaviour understandable from a human point of view.
The cases that have been decided on this point consider these factors, so lets consider them in more detail.
Were you aware your employer does not tolerate swearing?
An employer might demonstrate that they do not tolerate swearing in the workplace by doing such things as:
- putting a policy in place to make employees aware that swearing in the workplace is unacceptable; and
- enforcing the policy from time to time when it is breached.
In many workplaces, however, swearing is commonplace and the employer does nothing about it, or even swears themselves. In those sorts of workplaces, the cases suggest it would be less likely to be fair for the employer to criticise you for swearing. You might have reasonably thought that such behaviour was tolerated. Fair enough, we might say.
Here is the takeaway for employers: if you want to have certain standards upheld in your place of work, make sure you put policies in place, distribute them to your staff, and enforce those standards when necessary.
Was your swearing understandable in the circumstances?
The employer must not only make you aware that swearing is not acceptable, but they must also take into account the circumstances that led to the swearing.
If you swore in agony after injuring yourself by smacking your thumb with a hammer on a construction site, that would be understandable.
If, however, you swore directly at a co-worker, a client, or your boss, intending to offend, rather than simply swearing in the course of banter with your colleagues or in response to some injury you have sustained, then we could all appreciate that is less likely to be acceptable.
Even so, if you swear directly at someone else, the cases suggest that your employer must consider whether there was some underlying explanation for your behaviour.
That is particularly so if it was out of character for you and spoiled an otherwise unblemished work record. Maybe you were under some unique pressures at work or at home.
There are all sorts of factors that may need to be weighed before dismissal for swearing can be considered fair.
Every decision to dismiss must be weighed against our own innate sense of what is fair, and what has been considered fair in other cases.
When it comes to misconduct like swearing, you can be fairly dismissed if you were aware the employer did not condone your behaviour, and the circumstances did not make your actions understandable.