Swearing in the workplace does occur, and can happen across the board, not just in factories but within office environments.

There have been many cases where a tribunal has agreed that the swearing is unacceptable and justified the termination of the employment. This has often been the case where the swearing was directed at a particular person, particularly if it is a supervisor or employer

However, it will always depend upon the facts whether the offensive language is so bad as to justify their dismissal.

The Fair Work Commission recently had a case of offensive language before it and took into account not just the language used but also the recent changes in the law relating to sexual harassment, and the employer's duty to eradicate such behaviour.

The Commission found that it was not a case of mere "foul mouth ranting" in a workplace where swearing was commonplace, but the words used were not only grossly offensive but constituted sexual harassment.

Employers have multiple duties to employees when they are at work – maintaining a safe workplace is one, and preventing sexual harassment and bullying is another.

Though it was argued by the employee that swearing was commonplace the Commission did not accept that as an excuse, as the swearing amounted to sexual harassment.

As an employer you should be aware of what constitutes sexual harassment, investigate complaints when they are made, and taking action when it is found there is employee misconduct.

If the swearing does amount to sexual harassment, it should be noted that sexual harassment is deemed serious misconduct under the regulations and can justify summary dismissal. However, it is important that correct processes are followed including a proper investigation and giving the employee the opportunity to respond to the claim.

It is always best to get advice before terminating an employee, and Primary Employers Tasmania can provide appropriate advice.