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Case summary: Warren Power v Lyndons Pty Ltd T/A Lyndons [2023] FWC 1060 (5 May 2023) – Unsuccessful unfair dismissal claim due to harassment

Published on November 6, 2024 by Peter Punch

Regrettably, swearing by employees in the workplace does occur, and such behaviour is not confined to so called “blue collar” environments. There are many instances over the years of industrial tribunals having to rule on whether a worker’s foul mouth at work justified their dismissal.

It is not uncommon for tribunals to accept that offensive and obscene language by a worker was misconduct, and then to rule that in all the circumstances, including the prevalence of the behaviour in the particular workplace, the swearing did not justify the “ultimate sanction” of dismissal.

As is so often the case in unfair dismissal cases, it all depends on all the facts whether offensive language by a worker is so bad as to justify their dismissal.

A recent decision of the Fair Work Commission is however especially useful on this subject having regard to recent changes in the law relating to sexual harassment, and the employer’s duty to eradicate such behaviour.

This was not a case of mere “foul mouth ranting” in a workplace where swearing was commonplace – in this case of Power v Lyndons Pty Ltd the words used were not only grossly offensive but constituted sexual harassment.

Background

Mr Warren Power (the employee) was a sales representative for Lyndons Pty Ltd (the employer), a building supplier.

In August 2022 it was alleged that during a heated argument with another employee he directed comments of a sexual nature (including references to sexual acts) towards another employee (the words).

[If you want to know what the words are, please read the decision – we will not repeat them here!]

The colleague subsequently gave evidence that the employee made inappropriate comments regularly and bullied him. The colleague filed a written complaint the same day and then two days later resigned. The employer subsequently conducted an investigation into the complaint.

In November 2022, the employee was dismissed for bullying and sexual harassment.  The employee disputed the dismissal and subsequently made an unfair dismissal application.

The unfair dismissal application dispute

The following was in dispute:

1. whether the employee said the words as alleged; and
2. whether the employee was unfairly dismissed for bullying and sexual harassment.

1. The words

The Deputy President was satisfied the employee said the words in dispute. It was held that the words clearly fell within the definition of sexual harassment as defined in regulation 1.07(3)(a)(iv) of the Fair Work Regulations 2009 (Cth)).

Furthermore, the Deputy President noted that,

“whilst swearing in the workplace may or may not be commonplace the words used by [the employee] went far beyond simply swearing in the workplace and fall squarely within the definition of Serious Misconduct as prescribed by the Fair Work Regulations. Such conduct in the workplace is simply intolerable, the evidence was clear that it was unwelcome.”[1]

2. Was the employee unfairly dismissed?

The employee in his application sought reinstatement and/or compensation, arguing that the words were never exchanged and that if they had, dismissal was a disproportionate response having regard to the fact that swearing was commonplace at his employment with the employer.

The Deputy President noted that she found the employee’s complete denial not credible, and his evidence to be self-serving. Given that there were multiple witnesses who gave evidence of the heated exchange and who were all distressed and affected by the seriousness of the employee’s alleged conduct, the employee’s outright denials seriously damaged his own case.

The Deputy President was satisfied that the dismissal was for a valid reason and related to his conduct and use of words in the exchange in August 2022. The employee was appropriately notified of the reason for his dismissal and was also provided adequate opportunity to respond.

The Deputy President was satisfied that the employee was not unfairly dismissed within the meaning of section 385 of the Fair Work Act 2009 (Cth). The employee’s dismissal was therefore not harsh, unjust, or unreasonable.

The employee’s application was dismissed.

What are the key considerations?

No employer can completely stop employees ever swearing in the workplace. But casual crude remarks between workmates who are equally to blame are one thing – an employer condoning employees’ foul and offensive language that breaks the law is another.

Employers have multiple duties to employees when they are at work – maintaining a safe workplace is one, and preventing sexual harassment and bullying is another.

But in addition,  two years ago the Federal Parliament enacted legislation, arising from the Human Rights Commissions “Respect at Work” Report (please provide link), that imposed  on employers a positive duty to take reasonable and proportionate measures to (i) eliminate sexual harassment and sex based harassment, and to (ii) not expose employees to a “hostile work environment” by reason of their sex.

The recent case of Powers v Lyndons is instructive on this subject. The employee argued that swearing was commonplace in the workplace, but the Commission was not swayed by that argument. That was not so much because the words were grossly offensive, but more importantly because the conduct amounted to a form of sexual harassment – and of course the employer’s duty to its staff required it to act to sanction such misconduct.

This is an important case for employers to consider  – they need to ensure that they are:

i. aware what behaviour and conduct constitutes sexual harassment;

ii. conscious that sexual harassment is serious misconduct as prescribed by the Fair Work Regulations and gives rise to immediate termination;

iii. investigating complaints thoroughly when they are made; and

iv. taking action if there are any findings of employee misconduct.

Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you.

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[1] Warren Power v Lyndons Pty Ltd T/A Lyndons [2023] FWC 1060 (5 May 2023) at [107].