FWC: not unfair dismissal for swearing like a “wharfie”

Rikihana v Mermaid Marine Vessel Operations Pty Ltd [2014] FWC 6314

Rikihana (“the applicant”) was employed as a “wharfie” by Mermaid Marine Vessel Operations and was dismissed after repeatedly using offensive language.

The FWC’s position on this case reinforces that even though swearing was a part of the culture at the dock, there is a difference between descriptive everyday language and swearing aggressively and maliciously at another person.  This decision confirms that employers are able to dismiss employees on grounds for aggressively swearing at someone.

At paragraphs [146]-[150] of the decision:

[146] Considering all of the factors as required by section 387 of the Act there is no basis for finding that the dismissal of Mr Rikihana was harsh, unjust or unreasonable.

[147] His behaviour on 4 September 2014 was unjustified, extreme and unacceptable. This misconduct was another example of behaviour he had engaged in over the course of his employment where he had responded to persons in authority in a contemptuous and aggressive manner without justification. Mr Rikihana had been put on notice by his employer on a number of occasions that this was not acceptable. He was aware his actions were contrary to the behavioural expectations of his employer as detailed in its code of conduct and when asked to account for his actions he was not honest in his responses to his employer.

[148] Mr Rikihana’s dismissal in all the circumstances was not surprising and certainly was not unfair.

[149] Mr Rikihana was not unfairly dismissed.

[150] This application will be dismissed and an order to that effect will be issued.

David Cormack – Brisbane Barrister & Mediator

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