A tradie boss swore at a worker. A tribunal ruled that’s not OK
The workplace tribunal has drawn a line in the sand on everyday expletives in blue-collar workplaces after finding a boss swearing at a worker is scary enough to force them to resign, paving the way for unlawful dismissal claims.
The Fair Work Commission held Melbourne small business DMG Building and Electrical Services constructively dismissed an electrician because the boss addressed performance concerns with him in such a confrontational manner that it created a work health and safety risk.
A boss aggressively swearing at a worker is grounds for constructive dismissal, Fair Work ruled
The ruling continues the commission’s strict stance on crude language, including a full bench overruling a findingthat a worker calling a colleague a “f---ing dog c---” was unexceptional language on a mine site.
However, workplace experts warn the latest decision sets the bar too low for constructive dismissals – which is when an employee resigns because they feel they have no other choice.
In the case, Commissioner Susie Allison found that while swearing was likely to be part of the “everyday work culture” of the blue-collar business, a boss swearing at an employee went too far.
An employer is in a position of power and [the boss] needs to be aware that behaviour that might be acceptable with a friend or in another context, is not acceptable or appropriate with an employee,” she said.
“Given [the worker] was reasonably concerned for his mental and physical safety, I find that [he] had no effective or real choice but to resign.”
The commission heard the DMG director had been concerned about the electrician’s work levels and his taking time out of the workday to attend religious prayer without informing the company.
According to the worker’s secret recording of his performance meeting, the director raised his voice saying “are you f---ing serious” and “you’re making me angry!” when the worker compared wear and tear on a company car to requests for him to call clients on his personal phone.
The director also raised concerns the worker was “self-absorbed” and “not a team player”, accusing him of being deceitful in not revealing he was taking time off to visit a mosque.
“I don’t want any negative nancies running around my company f---ing becoming toxic to other blokes. It festers,” he said.
“What we do with those people, we f---ing weed them out … you need to be on the same page as everyone.”
The meeting ended with the director discussing how the electrician could take time off for prayer and make up his work hours at other times. He told the worker he was willing to work with him if he was clear on availability.
However, the next day, the electrician took personal leave due to mental health issues and resigned the following day. He then filed an adverse action case alleging bullying, poor treatment and safety concerns.
The director, representing himself, denied any inappropriate behaviour and said he addressed the situation in the same way he would with other staff.
Commissioner Allison acknowledged the director was “clearly an employer who cares about his employees and listens to their concerns”, noting that he was very open to flexible work arrangements to attend religious practices.
DMG also did not have a human resources manager and its boss relied on “on close, direct relationships with his staff, speaking openly and frankly”.
“Having said that, in my view, the language and behaviour directed towards the worker at the meeting ... is not appropriate or acceptable behaviour in any workplace,” she said.
She found that, while not intending for the worker to resign, the director acted in “an aggressive, confrontational and inappropriate way that was likely to make [the worker] feel intimidated.
“I find that the probable result of an employer engaging in the aggressive and confrontational conduct described ... was such that [the worker] would resign.”
She rejected DMG’s jurisdictional objection to the dismissal case and allowed the matter to proceed to mediation.
Herbert Smith Freehills employment partner Natalie Gaspar said the introduction of psychosocial risks in work health and safety laws meant there was a lower tolerance for this sort of behaviour in the workplace.
Nevertheless, she said she was surprised by the decision and argued it was “not consistent with the weight of authority on constructive dismissals”.
“It’s quite a high bar,” she said. “The focus should be, does the employer intend to cause the resignation or, objectively, would someone have no choice to resign in the circumstances. It shouldn’t be on the individual’s reaction or response.”
