Is foul language enough to warrant dismissal?
Rossi v Low Latency Media Pty Ltd t/as Frameplay [2022] FWC 2133
On 12 August 2022 the Fair Work Commission handed down a decision which has cast doubt on what constitutes acceptable workplace behaviour.
Material facts:
In 2017 Mr Rossi and Mr Troughton jointly founded Low Latency Media Pty Ltd (‘Frameplay’) to create video games. Subsequently, Mr Troughton moved to the United States to work for the American Holding company and Mr Rossi became the sole director and Chief Technology Officer of Frameplay in Australia. In April 2020 Mr Rossi secured finance for Frameplay to keep it afloat during the COVID pandemic.
On 2 July 2021 Mr Rossi received a telephone call from several executives of the Holding Company in the United States advising him that he was to be dismissed for serious misconduct without providing any detail. He was then sent a letter of termination via text message. The American executives then removed his access to the computer systems. Frameplay alleged that Mr Rossi had:
disparaged senior female employees;
swore and used offensive language towards a junior staff member;
intimidated staff;
undermined executive directions;
was generally hostile in the workplace.
Mr Rossi filed an unfair dismissal application alleging that the dismissal was ‘manifestly disproportionate’ in all the circumstances and that he had not been previously warned about his alleged inappropriate conduct. Frameplay argued that Mr Rossi had been warned on at least 4 occasions about his conduct and that his conduct constituted serious misconduct within the meaning of reg 1.07 of the Fair Work Regulations, 2009 (Cth).
Decision of the Commission:
Commissioner Yilmaz held the following:
Mr Rossi had screamed at Mr Troughton stating ‘I’ll speak to you however the f**k I want’. This was a conversation between two business partners and was a ‘robust disagreement’ but fell short of disparaging conduct;
swearing in the workplace must be greater than a single instance to warrant summary dismissal and must be inconsistent with the continuation of the employment contract;
robust disagreements in the workplace with the use of coarse language did not constitute serious misconduct ‘on any level’ (at [124]);
bypassing a direct report to provide instructions to subordinates did not constitute serious misconduct;
the hearsay reports from HR were not sufficient to support a finding of disparaging conduct in the workplace;
the failure to have in place any policies or procedures as to appropriate conduct in the workplace was fatal to the allegations of serious misconduct;
any warning of inappropriate conduct must be ‘clear and unambiguous or (in) plain and clear terms of a warning’ (at [137]).
The Commissioner therefore found that the reasons for the dismissal were not sound, defensible or well founded. However, the Commissioner found that although Mr Rossi was direct, uncompromising, argumentative and abrasive, this was due to the pressures of a start-up business which did not ‘aid’ positive communications. Furthermore, the conduct of Mr Troughton in dismissing Mr Rossi lacked due process and failed to take account of Mr Rossi’s commitment and contribution to Frameplay over the years.
The dismissal was found to be harsh, unjust or unreasonable.
Despite there being a lack of trust and confidence, the Commissioner then ordered that Mr Rossi be reinstated to his position as Chief Technology Officer and that despite the differences of opinions, the Commission found that Mr Troughton and Mr Rossi could continue to work together. Back-pay was also ordered.
What does the decision mean for employers?
There are a number of takeaways from this decision:
offensive language alone and on one occasion in the workplace will not be sufficient to constitute serious misconduct;
an employer must have in place policies and procedures which clearly set out the expected workplace behaviours of employees;
any warnings must identify the relevant aspect of the employee’s performance and make it clear that the employment is at risk unless the performance issue is addressed;
a lack of trust and confidence will not preclude a reinstatement order. The question is whether a sufficient level of trust and confidence can be restored to make the relationship viable and productive.
The most interesting aspect of the decision is that there was a finding that ‘robust’, ‘direct’ and ‘abrasive’ communications in the workplace were not viewed as inappropriate conduct.
What should you do?
Because the Commission has reinforced that inappropriate workplace behaviour must be inconsistent with the continuation of employment, employers must ensure that there is a workplace policy in place which sets out the expected workplace behaviours of employees, specifically in relation to communications.
Reach out to us if you have any questions regarding the formulation of your policies and procedures.
Simon Berry
Partner
sberry@hilliardandberry.com.au.
If you require any further information, please do not hesitate to contact the Hilliard & Berry Solicitors’ office on (02) 8324 7500 asking for the Workplace Relations Team.