A Victorian case has highlighted yet again, that unprofessional conduct at work is not just a breach of employment (and common decency) standards, but it can also be a health and safety risk. In a twist on the normal, this case hinges around the unprofessional conduct of director of the business in what is considered a “robust” environment, but issues a clear caution to all employers around the cost of swearing in the workplace.
Case Review
In this case the Director of the business regularly used the word c#nt directed at and when referring to his employees, as well as using racist remarks.
In a meeting in April 2018 the Director asked the employee in a meeting with other staff “what have you achieved today cunt?”. The worker, having reached a limit left the meeting and sent the Director requesting that from now on the Director refer to the worker using the workers name and that he be treated with respect. The Directors response was to call the worker and ask “are you fucking serious?”.
The worker alleged that following this complaint the Director stopped engaging with the worker at all, excluding him from meetings.
In September 2018 the Director terminated the worker telling him he was not a good fit for the business.
In his defence the Director admitted to swearing but said it was in a “mateship tone of voice” and claimed that the dismissal of the worker was a result of the workers poor performance, and not, as the worker alleged, as a result of the complaint the worker made.
Judge Kirton, in her findings, noted that there were actually performance issues and that these were indeed the primary reason for the dismissal of the employee, but that the performance issues existed before the complaint was made, and that prior to the complaint being made the Director had been proactively working with the worker on addressing those issues in a functional manner. In finding that the complaint was a secondary reason for the dismissal, the Judge noted that following the complaint being made the Director not only stopped talking to the worker and excluded them from meetings, the Director also ceased working with the worker on the sales performance.
$93,500 was awarded to the worker as damages. Penalties to the business for breaches to Section 21 of the OHS Act will be determined at a later date.
Learnings for All Businesses
“Unprofessional conduct is often seen as ‘just’ a business policy breach, but it has much broader implications. While the most common is that such conduct often trigger bullying and harassment claims, there is also a safety implication that must be considered”, explains ACAPMAs Elisha Radwanowski.
“When the conduct is coming from a manager or owner, there is the additional element to consider (when the business responds) of adverse action. An employee who asserts a right, such as the right to not be referred to as a profanity instead of their name, and the business takes action that harms or adversely effects their employment, the employee may have access to an adverse action claim, which comes with the potential for pain and suffering damages as well as economic damages”, added Elisha.
“The takehome is this, a safe and professional workplace is one that should be fostered and protected. Where inappropriate conduct is happening at any level there is an employment breach and potentially a safety breach, and the businesses response to the situation may also rise to the level of adverse action, so caution is required all around”, concluded Elisha.
Here to Help
They are provided as general advice and you should seek further advice on your situation by emailing employment@acapma.com.au its free for members. ACAPMA membership is affordable at only $860 per year for a single site and valuable with sites gaining access to all the ACAPMA Guides as well as HR and IR advice support and representation and a raft of other benefits and discounts.
Elisha Radwanowski BCom(HRM&IR)
Executive Manager Employment and Compliance
ACAPMA
