Vulgar language in the workplace – Where do I stand?

“Foul words is but foul wind, and foul wind is but foul breath, and foul breath is noisesome; therefore I will depart unkissed.”- William Shakspeare

Introduction

Does swearing in the workplace give your employer grounds to terminate your services? Under what circumstances would dismissal be an appropriate sanction?  Simply put, obscene language will not always give your employer sufficient grounds to justify a dismissal.  However, this does not give employers the opportunity to take a lawless approach to discipline in the workplace.

Code of conduct

The courts have found that, if swearing is coupled with additional acts of intimidation, aggressiveness, threatening behaviour/actions, or disrespect towards another employee, it may pose a risk to the health and safety of fellow colleagues, or may even constitute a breach of workplace harassment policies or code of conduct; and more so, if this behaviour is directed towards a manager, enabling the employer to proceed with charges relating to insolence and/or insubordination.

Employers, generally set out rules and standards in company policies and procedures; which stipulate the minimum requirements of employees’ behavioural expectations whilst at work. Employees who fail to follow these rules and regulations, as stipulated, may be subjected to disciplinary action and could possibly face dismissal.

The use of vulgar language in the workplace may be viewed as unethical behaviour, displaying discourteousy and a lack of respect towards fellow colleagues. Vulgar and obscene language includes rude behaviour, condescending tone of speech and/or a lack of regard for others in the workplace.

The Bester case

The Constitutional court addressed this form of unethical behaviour in a very serious light, in the matter of Rustenburg Platinum Mine v SAEWA obo Bester and others 2018 (8) BCLR 951 (CC) and found that even seemingly ‘neutral’ language may be offensive and may constitute racism, given the tone and surrounding circumstances.

The facts in this matter are as follows, Mr. Bester allegedly interrupted a safety meeting and demanded the removal of a particular vehicle parked next to his, and in a loud voice, said: “verwyder daardie swart man se voertuig.” Mr. Bester was subsequently dismissed on charges relating to insubordination and making of racial remarks. The matter was referred to the CCMA, later to the Labour Court, Labour Appeal Court and then to the Constitutional Court; whereby in a unanimous judgment, Theron J, held that “the correct test was whether a reasonable, objective and informed person would, on the correct facts perceive “swart man” to be racist and derogatory; [and further stated that] phrases are presumptively neutral – fails to recognise the impact of the legacy of apartheid and racial segregation that has left us with a racially charged present.”

Minimum standard and Workplace rules

The courts have expressly stated that company policies and workplace rules need to be clear and established; and moreover, employees need to be aware and informed of those standards, for rules to be adhered to.

In the judgment of Van Tonder vs Vaal Drift Boerdery Vennootskap (2000 5 BALR 583), the arbitrator found that an employee was unfairly dismissed for, inter alia, swearing; because the company had no established rule or policy against swearing in the workplace, the employee was awarded compensation.

Furthermore, in the matter 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 Labour Court found that an employee’s dismissal, after being found guilty of directing abusive language towards his superior, was too harsh in the circumstances.

The Labour Court further found, that the employee had, indeed, sworn at his superior; recognising that swearing was accepted standard in the workplace, however, that dismissal was an inappropriate sanction under these circumstances. The court reinstated the employee, with a final written warning, after taking due consideration of the employee’s personal circumstances in this instance: being that of long service, that he was near to his retirement age and that the offensive words were not directed at the superior, but were merely descriptive of the situation.

Further to this it was seen that there was no evidence led to show that there were any previous cases where an employee had been disciplined for using similar language in the workplace.

Where do I stand?

With the above rulings in mind, it may be assumed that swearing is acceptable in the workplace, unless your employer makes it clear that such language is prohibited.  It is further evident that the existence of policies and procedures regulating the use of vulgar language in the workplace are of the utmost importance and should form part of the company’s disciplinary code and code of conduct, so as to guide your behavioural expectations whilst at work. MISA suggests that you make it a point to familiarise yourself with the content of your company policies and steer clear from getting yourself into uncomfortable situations in the workplace.

Conclusion

Whilst we understand that workplace pressures tend to fire up the foul tongue, it needs to be remembered that the workplace is a place of professionalism. One needs to be cautious, to ensure that swearing does not become part and parcel of your workplace culture. If it does, it would be difficult to impose discipline for individual acts of swearing or the use of vulgar language, as the company culture would be viewed as having an ‘accepted standard of behaviour’ in the workplace, meaning that it would be unfair to single out any one employee whose behaviour is deemed to be customary.

With the above in mind, one can conclude that a once-off swear word that slips off the lips, especially if it is just used as a language intensifier, and not personally directed, may not justify dismissal; swearing which is personally-directed, combined with threats of physical violence, could likely lead to your employer terminating your services. 

Moreover, employees need to feel safe at work, if you are being exposed to uncouth, foul language or behaviour in the workplace, contact MISA for assistance – we are just a phone call or an e-mail away!

Kindly utilise the following e-mail addresses and links for assistance during this time: 

Employer UIF/TERS Submissions                  UIFClaim@ms.org.za

Legal/Labour-related enquiries                      Legal@ms.org.za  

Legal Reception                                                011 476 3920

MISA Benefit claim-related enquiries            Claims@misa.org.za   

Any other enquiries                                          Info@ms.org.za  

Website                                                              www.misa.org.za    

Mobile App                                                        https://onelink.to/w9a7ku

References:

Lithotech Manufacturing Cape, A division of Bidpaper Plus (Pty) Ltd v Statutory Council Printing, Newspaper & Packaging Industries and Others (C104/09) [2010] ZALC 223; [2010] 6 BLLR 652 (LC); (2010) 31 ILJ 1425 (LC) (26 November 2010) (saflii.org)

SWEARING IN THE WORKPLACE – RASA (restaurant.org.za)

LEGAL ADVICE Archives – RASA (restaurant.org.za)

Rustenburg Platinum Mine v SAEWA obo Bester and Others (CCT127/17) [2018] ZACC 13; (2018) 39 ILJ 1503 (CC); 2018 (8) BCLR 951 (CC); [2018] 8 BLLR 735 (CC); 2018 (5) SA 78 (CC) (17 May 2018) (saflii.org)

Rustenburg Platinum Mine v SAEWA obo Bester and Others (concourt.org.za)

What is the difference between ethical and unethical behavior? – FAQ (libanswers.com)

Examples of Unethical Behavior (yourdictionary.com)

The 5 most common unethical behaviors in the workplace – Philadelphia Business Journal (bizjournals.com)

Examples of Unethical Behavior in the Workplace (chron.com)