Abusive language in the workplace

Eddie Taia – Senior Litigator

You might have read about a recent case in which a Pak’nSave worker was dismissed for calling her manager a “bitch” but was successful in receiving nearly $13,000 from the Employment Relations Authority for lost wages and compensation.  Does this mean you can use abusive language against your supervisor or manager with impunity?  Not quite.

The case is unusual in that the worker did not use these words in the presence of her manager but in a discussion with a friend in the staff tearoom who happened to be a supervisor.  When the friend passed the comments onto management a formal disciplinary meeting was held with the result that the worker was dismissed for serious misconduct.

So was the decision by the Authority to award compensation fair?  Probably.   It concluded on whether the supermarket acted as a fair and reasonable employer as required by the Employment Relations Act 2000.

Although the conversation took place in the staff tearoom it was still deemed private.  The Pak’nSave representative did not take detailed notes at the disciplinary meeting, with only 10 lines of text written over the course of a 3 hour meeting.   There were inconsistent statements regarding what was actually said which were not properly investigated or considered.  The supermarket also relied on the worker’s previous work history which was irrelevant given previous issues did not involve abusive language.  Swearing was also normal and common place in the workplace.

The Authority concluded that all these factors taken into account meant the investigation was defective and the employee was entitled to an award.

So what does this mean to you as an employer?  The starting point is to act fairly and reasonably, and this depends on the circumstances.  Any disciplinary process when serious misconduct is claimed should be robust and comprehensive given the possible consequence for the employee and the consequences if you get it wrong.  We recommend speaking to a lawyer, because every situation is different.   For example, there will be plenty of occasions where swearing or abusive language in the workplace may be classed as serious misconduct.  But you still need to follow the proper process.

The information contained in this paper is necessarily of a generalised nature and specific advice should be sought in relation to any particular situation. Further information and assistance in relation to this article can be gained by contacting senior commercial litigator Eddie Taia.