We live and work in a permissive society marked by increasingly informal dress and speech codes. Speech is often peppered with fashionable expletives, and more particularly, with the many variations of the F-word.
Although conservative work structures have broken down and almost everyone is on first name terms, regularly share tweets and are friends on Facebook, it doesn’t mean that the use of bad language is okay at the workplace.
Broadly speaking bad language includes the use of expletives, foul language, and abusive or derogatory utterances. It is deemed to be anti-social, and lacking in civility. Abusive language falls into different categories which include racial and sexist insults, as well as words and phrases which constitute sexual harassment.
Such abusive language may be used to harass, demean, degrade, embarrass, humiliate, ridicule, insult, threaten, show contempt and disrespect, or simply to impair the dignity of a fellow employee.
Grogan (“Dismissals”) has categorised swearing or verbal abuse in the workplace as misconduct.
When such language is directed towards a senior employee such as a supervisor or line manager, an employee may face allegations of insubordination or insolence. On the other hand, management may not direct abusive, disrespectful or offensive utterances at their subordinates.
There are a number of examples in our labour law where a subordinate employee or a member of management who used “bad language” lost his job and where that dismissal was upheld either at arbitration or by the court.
As early as 1998 the Labour Appeal Court (“LAC”) made it clear in the matter of R & C X-Press Freight v Munro that an employee’s use of abusive language impacts negatively on individual employment relationships as well as on the interests of the employer’s business.
The LAC said that factors which aggravate the offence include the extent of the abuse, its degree and the level of malice with which such usage is accompanied.
In confirming Munro’s dismissal, the LAC said that a manager is not entitled to use abusive language towards a subordinate and that the latter was entitled to expect courtesy and civility from his superior.
In 2005 a Mr Costa, the chief operating officer at Nu Metro Theatres, discovered too late that his reliance on the absence of a rule prohibiting the use of bad language and/or his reliance on his right to the freedom of speech, would not save his job.
He used very strong language when he shared his views about the Christmas party and some of the employees with another manager. The conversation was overheard by one of the employees referred to. The offended employee complained.
Mr Costa argued that the employer did not have a policy in place regulating this issue, that the conversation was private, that it took place after working hours, and that his right to the freedom of expression allowed him to have made those utterances.
When Mr Costa was dismissed he went to arbitration. The arbitrator rejected his defence and said that employees are entitled to respect, courtesy and civility, and that his right to the freedom of expression did not entitle him to harm or disrespect the dignity of a fellow employee. Although there wasn’t a rule against the use of bad language, Mr Costa was not free to insult the dignity of a fellow employee.
In a recent arbitration (Anunathan Reddi / UKZN [arb 2018]), the arbitrator found that the evidence before him provided sufficient proof that the applicant was, on a balance of probabilities, guilty of the allegation that he had committed “gross misconduct in that he used abusive, insulting, derogatory, blasphemous, racist and sexist words or phrases”.
It therefore came as no surprise that the Labour Appeal Court in October 2018 upheld the dismissal of Mr Watson (South African Rugby Union v Watson and others) for using abusive language at the workplace.
In preparing the referees for the big rugby games, Mr Watson did not hold back. His language offended all the refs. He was dismissed for what the Labour Court described as “language and conduct which was grossly inappropriate, unprofessional and unbecoming”.
Although the LAC found that the Labour Court had gone too far by making a finding of incompatibility, it confirmed the Labour Court’s decision that dismissal was the appropriate sanction for the bad language used.
The importance of these judgments
No matter how fashionable a four letter word or insult becomes, no employee can simply pepper his speech with language which may be categorised as bad language.
Management must remain civil in its communication with its subordinates, and those subordinates must be equally civil when talking or writing to management – or even to other employees.
It does not matter whether there is a policy prohibiting the use of bad language, or whether the employee is of the view that he can exercise his right to the freedom of speech by using bad language – the fact of the matter is that it would be wise not to use any bad language in any work related situation.
There is sufficient case law to support an employer’s decision to dismiss any employee who has given offence to another because of his choice of words.