Swearing at MD not a summary sacking offence: FWC

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Swearing at MD not a summary sacking offence: FWC 

he Fair Work Commission has ruled that swearing at a manager in a private telephone conversation does not warrant summary dismissal.

Deputy President Nicole Wells said a garbage truck driver summarily dismissed by Aussie Waste Management Pty Ltd, after a heated phone call with the company’s managing director which included swearing, should have been disciplined but not dismissed.

She accepted that the driver had told the managing director: “You dribble shit, you always dribble fucking shit”.

Deputy President Wells said while using bad language towards a supervisor or manager is different to “swearing at an inanimate object or its use as an adjective”, it must be considered “in the context of the workplace”.

“There is no doubt that workplaces are more robust in 2015, as they relate to the use of swearing, than they were in the 1940s. Further, I would not consider it uncommon for bad language to be used in the workplace in this or other similar industries”.

She said that “in the context of a one-on-one heated discussion with his Manager without anyone else present”, the driver’s conduct was not “sufficiently insubordinate” for him to be dismissed.

Deputy President Wells said the phone conversation was not overheard by other http://dolphin70.aqbsoft.com/Paulsen_75 employees, which meant that it had not undermined the managing director’s authority in the workplace.

Evidence given by the company that the driver had previously received written warnings after four traffic accidents was not relevant, she ruled, because the company dismissed him over his conduct rather than his performance.

When it summarily dismissed the driver by phone, Aussie Waste Management also failed to provide him an opportunity to meet with managers and provide an explanation for his conduct.

“Procedural fairness is important and should not be lightly cast aside. Its proper application ensures a robust and just process for those involved.”

Deputy President Wells said she had taken into consideration the size of Aussie Waste Management and its lack of IR expertise, but its failure to “fulfil even the simplest of procedural fairness obligations” had weighed against the company.

After initially seeking reinstatement and payment of the 17.5% loading on unused annual leave when he was dismissed, the driver sought compensation at the hearing because he had, by then, obtained other employment.

Deputy President Wells said the loading was not payable on termination and she would require additional information before making a ruling on compensation.

Smith v Aussie Waste Management Pty Ltd [2015] FWC 1044 (12 February 2015)

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