Category: termination of employment

Swearing at work: Where are we now?

~ My safety thoughts ~ Leave a comment

Many employers regard swearing and inappropriate language at work as misconduct, and often grounds for dismissal.  Unfair dismissal claims and other cases which consider swearing in the workplace recognise that abusive language can be misconduct, although it is another question again whether the “misconduct” justifies termination of employment.

On 23 February 2018, the full bench of the Fair Work Commission handed down its decision in Illawarra Coal Holdings Pty Ltd T/A South 32 v Matthew Gosek [2018] FWCFB 749, another case considering inappropriate language in a workplace context.

Illawarra Coal had employed Mr Gosek for more than 11 years, and he was the Lodge President for the Construction, Forestry, Mining and Energy Union (CFMEU).

A member of the CFMEU had made a complaint about a manager at Illawarra Coal, and Mr Gosek had represented the member in relation to this complaint.

The allegations in the complaint were not proven.

On 4 October 2016, Mr Gosek, who was not rostered for work, went to the pub and was drinking. During the afternoon Mr Gosek sent a text message to seven of his colleagues and his supervisor. The text message said “dogs”. The employees rang Mr Gosek to discuss the text. Mr Gosek could not remember what he said in these conversations, but it was not contested:

  • The phone calls involved tense and heated discussions.
  • Mr Gosek used inappropriate language and called his colleagues a variety of names including “f**king dog” and “dog c***”.
  • Mr Gosek was under the influence of alcohol at the time.

This outburst was related to the workers participation in the incident investigation, or as the Commissioner described it:

Mr Gosek intended to convey to his colleagues his disappointment as Lodge President about their role in the investigation and his view that they had not upheld union principles and they had lied to the investigator.

When the case was first heard, the Commissioner found that Illawarra Coal had a valid reason to end Mr Gosek’s employment, but the termination was harsh, unjust, or unreasonable and ordered Mr Gosek be reinstated.  One of the factors influencing the decision was a finding by the Commissioner that the type of language used was “commonly used in the mine”.

Illawarra Coal successfully appealed the decision.

While there were multiple grounds of appeal canvassed in detail by the Full Bench, regarding the specific conduct, two Commissioners found:

…by focusing on the language and not the totality of the conduct the Commissioner downplayed the character of the conduct. The problem was not that Mr Gosek swore at this work mates. The conduct involved an expletive filled tirade which included threats directed at employees because they participated in an investigation.

In part the case is indicative of the difficulties faced by employers when assessing this type of conduct, because Commissioner Booth rejected the appeal, noting:

Although the conduct of the Mr Gosek on the day in question was clearly inappropriate, for the reasons detailed in this decision, the Commissioner took into account the conduct of the applicant and a range of other matters and concluded that the termination of Mr Gosek ’s employment was also unfair. That is, the decision reached by the Commissioner was that Mr Gosek’s behaviour was unacceptable but explainable. Therefore a finding the dismissal was unfair was available to the Commissioner. No error is revealed.

In my view, the case reinforces, rather than gives any new direction, about inappropriate language in the workplace.  The principles we can take away from decided cases, including this one are:

  • Prior warnings and repeat offences of swearing or inappropriate language in the workplace will support an employer’s decision to dismiss an employee.
  • Even if swearing is common in the workplace, it must be considered in context. It is one thing to swear in a general sense, it is another thing to swear aggressively and maliciously at another person, which is more likely to support a decision to dismiss an employee.
  • A single isolated incident of swearing, even directed at a person, is unlikely to justify dismissal.
  • While swearing, inappropriate language, or inappropriate behaviour, can be a valid reason for dismissing an employee, the dismissal must still be “fair”. Generally, this means that an employer must:
    • Give the employee an opportunity to explain their conduct;
    • Consider the conduct in context – why did it occur and were there any mitigating factors?
    • Consider the circumstances of the employee and any factors relevant to them, such as length of employment or prior performance.

Whilst misconduct cases often present difficulties for an employer, setting up clear processes to investigate and address misconduct while avoiding the temptation to “rush to judgement” will give you the best chance to successfully manage the situation.

Self incrimination in internal investigations: Is this really a thing?

~ My safety thoughts ~ 2 Comments

If you have followed my thoughts over the past few years, you will know that one of my concerns about the increasing emphasis on legal sanctions and penalties for health and safety breaches is the likely increase in legal risk management strategies at the expense of health and safety management. (See for example: $450,000: Is this what we want from prosecutions?; Is this really what due diligence was designed for?; Rethinking safety prosecutions part 2)

This concern has poked its head up again in the recent Federal Court decision, Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374. The case dealt with important issues about the rights of an employer to insist employees undertake a medical assessment with a doctor of the employer’s choice, a topic that has pervaded the management of injured workers for many years.

This topic is important and serious, and it has implications for both employees and employers. But the case also touched on another, far less well understood issue – the rights of employees to claim to self incrimination and refuse to answer questions in a company’s internal safety investigation.

Does an employee have a legal right refuse to participate in your internal incident investigations on the basis that in doing so, they may expose themselves to the threat of prosecution?

The protection against self incrimination has long been recognised in health and safety legislation. Legislation recognises the difference between “voluntary” interviews and “compelled” interviews. In the latter case, information provided to a regulator during a compelled interview cannot be used against the person providing the information, except in very limited circumstances, such as perjury.

In the Grant case, the employee had been terminated following a long running dispute over his capacity to return to work. As part of that process, Mr Grant attended an interview about his refusal to attend a medical appointment with a company nominated doctor.  During that interview, Mr Grant refused to answer questions unless they were put to him in writing.

During the various appeal stages of his case, Mr Grant asserted that he has refused to cooperate in the investigation on the basis of his privilege against self incrimination.

The Federal Court noted at [106]:

Privilege against self-incrimination means that a witness cannot be compelled to answer questions that may show the witness has committed a crime with which the witness may be charged if the answers may place the witness in real and appreciable danger of conviction:  Sorby v The Commonwealth (1983) 152 CLR 281 at 294.

The Federal Court went on to confirm the privilege against self incrimination :

  • Can apply to questions asked by an employer [108]; and
  • Can apply to questions asked during a workplace interview that have implications for a persons liability under health and safety legislation [108].

Unfortunately the Federal Court said that they could not decide the issue on the facts of the case. Or more eloquently, they said they could not decide it in “such a vacuum of facts” [110].

The Court did not need to decide the question of self incrimination to decide the case, but clearly reinforced its relevance in workplaces.

Of course, the next question that follows, is what is an employers rights in relation to an employee who refuses to participate in an investigation on the basis of self incrimination? Can they discipline them? Can they terminate their employment?

I do not want to try and give a definitive answer here, but it is at least arguable that any “adverse action” taken against an employee because they were exercising a legal right could amount to a breach of the General Protection provisions of the Fair Work Act, and leave the employer liable to penalties.

If the purpose of health and safety legislation is to help ensure safer workplaces, in my view, there is a need for constant vigilance to understand when the legislation undermines, as opposed to promotes, better safety management. If the legal risks have become so acute that employees no longer need to cooperate with safety investigations, it may at least be time for a discussion on the merits of penalties and prosecutions.

 

 

 

 

Boal V BHP – Zero Tolerance: Are your “systems” commensurate to your attitudes?

~ My safety thoughts ~ 1 Comment

I am not a fan of the language of “zero“, either as an aspiration or as a stated goal. It has never sat well with me, and seems so disconnected from day to day reality in both society and a workplace that people cannot help but become disconnected from, or dismissive of, the message behind the term. My view has always been that the language of zero actually undermines the objectives it is trying to achieve.

If you are interested in this topic (and if you are involved in safety you should be) there are far more passionate, learned and articulate critics of the language of zero than me – See for example, anything by Dr. Robert Long.

However, as a lawyer who specialises in workplace safety and health, I was very interested in a recent decision by the Fair Work Commission that demonstrates how an employers attitude of zero can be used against them.

In Mr Shannon Boal v BHP Coal Pty Ltd (U2014/5272), Mr Boal was dismissed for breaching mobile phone usage requirements when his mobile phone was found in the cabin of the truck he had been operating.

While the Fair Work Commission found that there was a valid reason to terminate Mr Boal’s employment, it found that the termination was unfair for a number of procedural reasons. In part, the Fair Work Commission relied on the level of training and information that Mr Boal had been provided about the relevant procedure.

The training documentation provided did not clearly demonstrate that employees were trained in this new procedure and signed accordingly, or that it was given a significant roll-out to employees commensurate with their ‘zero tolerance’ attitude to incidents of breaches, given how this case has been pursued (my emphasis added).

Whatever your view about zero as appropriate language for managing workplace health and safety issues, there is no doubt that it is strong, absolutist language. If you are going to frame your approach to safety in the rhetoric of zero, you need to be sure that your actions at work match the rhetoric. If you don’t, your workers will see your safety messages as nothing but “window dressing“, designed to look good but basically meaningless, and lawyers will use the term to undermine the efficacy of your systems.