In most workplaces there are moments when people become frustrated, for a variety of reasons. Tempers flare up and, in unguarded moments, a poor choice of words often follows to describe the situation, or the feelings involved.
The use of foul language is considered undesirable in some workplaces, but in many others, this is not necessarily the case. It is probably also fair to assume that the use of expletives in the office or workshop is an unwritten rule which everyone appreciates, but presiding officers may not all see it that way.
In the labour court matter of Van Tonder vs Vaal Drift Boerdery Vennootskap, the employee had been dismissed for, amongst other issues of misconduct, that he used foul language at work. However, the employer had no express (written) rule against swearing in the workplace. When the dismissal was challenged and arbitrated, it was ruled that the dismissal had been unfair. The employee was awarded compensation.
It should be kept in mind that the duty remains on the employer, in disciplinary matters, to prove that a rule exists, that the employees know of the rule and that the application of the rule is done consistently. So, if the employer does not make it clear to the employees, that swearing at work is not allowed, it will always be difficult to sanction the individual who does that.
In another decision of the labour court (Lithotech Manufacturing Cape – A Division of Bidpaper Plus (Pty) Ltd vs Statutory Council for Printing, Newspaper and Packaging Industries and Others) the employee had been dismissed for having used abusive language towards his superior in the workplace. At arbitration it was proven and accepted that the employee had sworn at his superior. But due to surrounding circumstances taken into account, the arbitrator found that dismissal was too harsh a sanction. The employee was reinstated and given a lesser sanction. The employer took this outcome on review to the Labour Court. The court considered the employee in question’s long service at the company, also that he was close to retirement. It was also accepted that the foul language used had been more descriptive of a situation, than aimed at the superior. The court mentioned that swearing in the workplace is a common occurrence and as such, agreed with the arbitrator that dismissal was not the appropriate sanction. The employee ended with a final written warning.
Considering the view of the labour court in the Lithotech case, it is arguable that the severity of the misconduct is dependent on who or what is targeted when the foul language is used. One must therefore distinguish whether vulgar language is being used in a general, non-specific way and in place of everyday adjectives; whether swear words are being used to describe specific objects or concepts so as to highlight an undesirable or frustrating situation; or whether it is directed at, or used to describe, a particular person in a negative way.
The words used and their meaning, combined with the context wherein they were expressed, as well as the audience, are additional and important factors in determining the seriousness of the misconduct complained of.
It is therefore recommended that employers implement appropriate policies in the workplace so that the issue of language is clear and understood. It is also key that senior and management personnel lead by example. If your management uses foul language in the office, your policy will be of little or no value, since employees are going to follow the leaders in their actions.
By George Herbst | Director
