Following some high profile cases in the US, HRM looks into whether Canadian employers can legally fire people for swearing. As it turns out, the answer depends on the context.
Can an employee swearing in the workplace count as misconduct? The answer depends on the context – and on the workplace environment HR has created.
“The first question is what are the rules of the workplace,” Toronto employment lawyer Stuart Rudner. “If there’s any type of behaviour you want to encourage or discourage put it clearly in a policy. It makes it easier for an employee to know what was expected, and easier for the employer to enforce.”
In 2003 the Labour Relations Board upheld a decision to terminate a Walmart Canada employee for wilful misconduct and wilful disobedience, with the contributing behaviour including swearing at a supervisor and refusing to complete an assigned task.
The board found that while some swearing was accepted in the workplace, there was a difference between swearing in frustration or at oneself, and swearing directly at a supervisor.
“There was no evidence that swearing of the nature in this case was ever tolerated in the applicant’s workplace,” board vice-chair Susan Serena wrote in the decision. “It is above debate that the responding party’s action constituted misconduct of a serious nature.”
Even with a policy in place, it doesn’t mean you can fire someone for a one-off offense, especially if there were mitigating circumstances such as a minor workplace accident. There could also be factors that make it a more serious offense, such as swearing in front of clients, or a teacher swearing in front of children.
“Typically a single incident isn’t going to be sufficient,” Rudner said. “It’s more likely that a lesser form of discipline would be appropriate. But if you had someone who was frequently swearing in front of kindergarten children that will be treated very differently to someone swearing in front of colleagues at a warehouse.”
As with any disciplinary action, it’s vital to document all incidents and the actions taken to address the behaviour in case of any future challenges to the decisions made.
“The first question is what are the rules of the workplace,” Toronto employment lawyer Stuart Rudner. “If there’s any type of behaviour you want to encourage or discourage put it clearly in a policy. It makes it easier for an employee to know what was expected, and easier for the employer to enforce.”
In 2003 the Labour Relations Board upheld a decision to terminate a Walmart Canada employee for wilful misconduct and wilful disobedience, with the contributing behaviour including swearing at a supervisor and refusing to complete an assigned task.
The board found that while some swearing was accepted in the workplace, there was a difference between swearing in frustration or at oneself, and swearing directly at a supervisor.
“There was no evidence that swearing of the nature in this case was ever tolerated in the applicant’s workplace,” board vice-chair Susan Serena wrote in the decision. “It is above debate that the responding party’s action constituted misconduct of a serious nature.”
Even with a policy in place, it doesn’t mean you can fire someone for a one-off offense, especially if there were mitigating circumstances such as a minor workplace accident. There could also be factors that make it a more serious offense, such as swearing in front of clients, or a teacher swearing in front of children.
“Typically a single incident isn’t going to be sufficient,” Rudner said. “It’s more likely that a lesser form of discipline would be appropriate. But if you had someone who was frequently swearing in front of kindergarten children that will be treated very differently to someone swearing in front of colleagues at a warehouse.”
As with any disciplinary action, it’s vital to document all incidents and the actions taken to address the behaviour in case of any future challenges to the decisions made.
