Something we hear pretty regularly from clients is: “What can I do when a staff member swears at their manager/storms off site?”.
Often they have heard about another employer which was found to be in the wrong for firing a staff member who:
- swore at their boss / co-worker / customer
- invited the boss to forcibly insert their job some place uncomfortable [paraphrasing], or
- a creative combination of the above.
The legal answer is the same as with any employee misbehaviour – take a moment to cool off and consider how serious the behaviour actually was (and follow a fair process). In this article we set out a few of the key issues which crop up in these situations.
How bad is the language, really?
In disciplinary situations employers have to ask themselves whether a certain punishment is something a fair and reasonable employer could impose. That will obviously depend on the actual language used in the circumstances.
Though it is not a definitive list, every few years the Broadcasting Standards Authority carries out a survey of the offensiveness of words/phrases. It is a good starting point for deciding how serious your average Kiwi considers certain words to be. It is also an interesting read if you ever wondered how certain TV shows or adverts get away with some of their content. (Warning: the research does contain offensive words and phrases – you may not want to read it at work).
Another key question is whether the language used is common in your particular workplace. If the workplace is made up of robust individuals who regularly swear in their day-to-day banter, an employer will struggle to justify taking action for a staff member using bad language. That was the case in an AFFCO meat processing plant where Mr Waihape allegedly asked his supervisor “Who the f&%# do you think you are?”. The evidence was that management didn’t crack down on similar rough / robust language in that workplace which meant AFFCO was not justified in firing Mr Waihape.
Another key question is whether the language used is common in your particular workplace. If the workplace is made up of robust individuals who regularly swear in their day to day banter, an employer will struggle to justify taking action for a staff member using bad language.
It’s all about the process
Donald Trump is being blamed for lots of things in the media these days. However, in an employment context, his main crime is (from his reality TV days) making employers think that they are able to simply say “you’re fired”. No matter how bad the behaviour seems, an employer still needs to follow a fair process when terminating employment. That includes giving them a fair opportunity to explain their behaviour at a meeting, along with other key steps. There may be additional procedure requirements in the employment agreement which the employer also has to follow. In another case, that was the major downfall for Valley Flyer buses when their employee, Ms Waaka, swore at her manager and stormed off the site. The employment agreement contained a set disciplinary procedure which the employer didn’t follow.
What if the employee told me to shove my job?
In the heat of the moment, people often say and do things they regret. In a situation where an employee has “blown up” and the employer thinks they might have resigned, there is a duty to check on that after a cooling off period of a day or so. That does not mean that they “get away with” their behaviour, just that employers can’t rely on a resignation given in the heat of the moment. A simple phone call (followed by a disciplinary process) can save employers a lot of grief and expense.
How can we help?
WRMK’s employment team regularly deals with disciplinary issues for our clients. If you think a staff member has misbehaved enough to warrant dismissal, the best time to call us is before you have taken any steps. We can help you through all steps of the disciplinary process.
If you have a question about a disciplinary process, or an employment matter in general, please give us a call.