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Fired for the "F" word
In Victorian society, lip-reading was regarded as something of an art. In an age before super-sensitive microphones and high-powered binoculars, lip-reading was the ultimate form of surveillance.
For those of you who would like to try your hand at this forgotten pastime, the best starting point is television coverage of virtually any major sporting event. Television networks delight in showing pictures (with no accompanying sound) of sporting stars silently voicing their discontent at foul play?and a referee's imprudent rulings.
For those who might be dissatisfied with the comparatively tame environment of New Zealand broadcasting, I suggest a close perusal of ESPN's coverage of Italian Serie A soccer. Even to those caught without their Italian phrase book, it is readily apparent that your average European soccer star is not prone to exclaiming "Your donkey has eaten my passport".
What this exercise demonstrates is that, at least in some professions, use of the "F" word is part and parcel of the job. In fact, the cynic would argue that use of the "F" word occurs in almost every New Zealand workplace from time to time.
However, as a recent case illustrates, an employer does not have to tolerate use of foul language by its employees in every circumstance.
The employee in Dodd v Spence Limited t/a Pak "N" Save (Unreported, Employment Relations Authority, Christchurch, 28 March 2002) was a deli assistant in a supermarket. A problem arose one morning when it was alleged that Ms Dodd told a customer to go away. The customer made a complaint to the store manager, who arranged for the Fresh Food Manager, Mr Prestland, to investigate the matter.
Mr Prestland talked to the deli staff about the complaint, but Ms Dodd denied that she had told a customer to go away. The Authority found that there was not a particularly good relationship between Mr Prestland and Ms Dodd. This was perhaps illustrated by the fact that Mr Prestland did not believe Ms Dodd's plea of innocence, and continued to assert that he was pretty sure that she had something to do with the matter.
Ms Dodd said that, after some verbal haranguing, she decided to accept a warning concerning the incident. At about this time (and one would imagine, amidst some raised voices) Ms Dodd told Mr Prestland to go away - this time using the "F" word to press her point.
Mr Prestland responded by referring this matter to the Store Manager, Mr Fleming. He swiftly arranged for Ms Dodd to meet him in his office.
The supermarket had a code of conduct for its employees which provided examples of behaviour that would be regarded as misconduct. Abusive and foul language was recorded as behaviour which would constitute serious misconduct, and would lead to instant dismissal.
Against this background, Mr Fleming viewed Ms Dodd's scatological outburst seriously. Ms Dodd admitted that she had sworn at Mr Prestland - and apologised for it. There was some discussion about the circumstances of the incident, and Ms Dodd told Mr Fleming that she thought that Mr Prestland had been picking on her.
Following this discussion, there was a five minute adjournment, following which Mr Fleming informed Ms Dodd that she was summarily dismissed for breaching the house rule against use of abusive and foul language.
Ms Dodd successfully challenged her dismissal. The Authority found that the decision to dismiss was unjustified because Mr Fleming did not fairly and fully investigate the incident, and take into account all the relevant circumstances of it - before making his decision.
Ms Dodd was awarded three months' lost wages - reduced by 40% to reflect her contribution to the situation. She was also awarded $1800 by way of compensation for hurt and humiliation.
In truth, perhaps the missing component to proper procedure in this case was the simple - and in the case of a similar schoolyard incident, essential - step of giving the parties an opportunity to cool off. The employer's investigation into this matter occurred while tempers were still high, and before either party had given quiet thought to their actions - and the circumstances which had led to this unfortunate incident.
As the protagonists of Serie A illustrate, we sometimes say things in our workplace in the heat of the moment which we later regret. Depending upon our work environment, an outburst of foul language may or may not be acceptable. Where an employer takes the view that the behaviour cannot be justified, it must ensure that it carries out a thorough investigation, taking into account all relevant background leading to the incident.
