15 September 2017

Work, by definition, is filled with frustration. Sometimes tempers can cause the cup of professionalism and courtesy to overflow. The use of expletives may be frowned upon (or even considered taboo) in some work places. But this does not necessarily hold true for all workplaces.

It could be argued that the prohibition against swearing in the workplace is an unwritten rule and is universally known. Unfortunately arbitrators might see it differently.

In the judgment of Van Tonder vs Vaal Drift Boerdery Vennootskap (2000 5 BALR 583) an employee was dismissed for a list of offences including the fact that he swore. The company, however, had no established rule against swearing in the workplace. The arbitrator consequently ruled that the dismissal had been unfair and the employee was awarded compensation.

Based on this, it may be assumed that swearing is acceptable unless the employer makes it clear to his/her employees that such language is prohibited. The Code of Good Practice places the burden of proving i) that the rule exists, and ii) that the employee knows of the rule, on the employer. If the employer fails to prove this, the rule is considered not to have existed at the time of the offence.

In the case of Lithotech Manufacturing Cape – A Division of Bidpaper Plus (Pty) Ltd vs Statutory Council for Printing, Newspaper and Packaging Industries and Others (2010) 31 ILJ 1425 (LC) the employee had been dismissed after being found guilty of directing abusive language towards a superior.

The arbitrator found that the employee had, in fact, sworn at his superior. However, taking into account the surrounding circumstances, the arbitrator found the employee’s dismissal sanction to be too harsh and awarded the employee a lesser sanction (effectively reinstating the employee).

This decision went on review to the Labour Court, which took into account the employee’s long service at the company and the fact that the employee would reach retirement age soon. Further, that the objectionable words were not directed at the superior but were (needlessly) descriptive of the situation. Evidence was also led that there were no previous cases where an employee had been disciplined for using similar language in the workplace.

The Labour Court recognised that swearing in the workplace was common and that a dismissal was inappropriate under the circumstances. The employee was subsequently reinstated with a final written warning.

This case lent credence to the idea that the seriousness of the offence was directly related to the target of the offensive language. By order of ascending magnitude, it therefore becomes important to distinguish whether i) swearwords are simply being used in a general, non-specific way and in place of everyday adjectives; ii) swearwords are being used to describe specific inanimate objects or broad concepts so as to highlight an objectionable situation; or iii) directed towards or used to describe a particular person.

The specific objectionable words and their meaning, together with the context wherein they were said as well as the audience (if any) who witnessed them said may be additional and important factors in determining the seriousness of the offence.

Based on all the above, it becomes clear that the existence of policies that regulate such language are of the utmost importance when considering disciplining staff.

However, employees are very perceptive and critical of their superiors and superiors set the tone for the workplace. If a superior regularly uses swearwords and harsh language, employees (may legitimately) accept that this is the norm and that swearing is not prohibited. In such a case the actions of the superior will weigh heavier than any written policy or procedure. Consistent application of the policy, especially to management, is therefore paramount in maintaining the integrity of the policy.