In contrast to two recent cases involving workers who were sacked for swearing, the Fair Work Commission has ruled that a worker who verbally abused a colleague following a forklift near-miss was unfairly dismissed.
Deputy President Anne Gooley found that prior to the incident the worker had been placed on a performance improvement plan as a result of misconduct, but the employer failed to ensure the plan was implemented, meaning the worker was required to "change his ways without being given the necessary skills" to do so.
In early 2014, the Coca Cola Amatil (Aust) Pty Ltd worker was reversing a forklift when a colleague walked across its path.
The worker yelled at the colleague, telling him he was "bloody stupid" and to "bugger off" from the rear of the vehicle.
The worker then reported the incident to the employer, but was told in a letter that he had engaged in inappropriate conduct "by acting in an intimidatory and threatening manner, and using offensive language towards another employee".
He was subsequently sacked and claimed unfair dismissal.
The FWC heard that the worker received a warning in July 2013 for behaving in an inappropriate, unprofessional and disrespectful manner, and received a final warning the following month for engaging in misconduct.
He was placed on a performance improvement plan requiring him to ensure his "communication, demeanour and interactions with colleagues and managers is respectful and professional at all times, including in any work-related meetings or events".
He was required to meet weekly with his supervisor, but the worker claimed they only met once.
Deputy President Gooley found it was inappropriate for the worker to swear at his colleague, and that as he had been warned about his interactions with others "he should have chosen other language to express his concerns".
But "the circumstances of the incident cannot be ignored", she said.
"[The colleague] had walked behind a moving forklift and caused [the worker] to have to stop suddenly. Had [the worker] not been able to stop [the colleague] could have been seriously injured.
"I accept that at the time he swore at [the colleague], [the worker] was shaken and angry.
Deputy President Gooley found that as the performance improvement plan had not been properly implemented, the worker was effectively "exhorted to change his ways without being given the necessary skills to affect that change".
She said while it was reasonable to expect workers to control their anger in near-miss situations, she accepted that "the use of inappropriate language is not uncommon in such circumstances", and upheld the worker's unfair dismissal claim.
As reported by OHS Alert in August, the FWC ruled that there was a "qualitative difference" between swearing in the workplace and swearing at a colleague, in finding a worker was fairly sacked for verbally abusing his manager.
A month later, the Commission found a safety rep who had a long history of unacceptable and aggressive behaviour in the workplace was fairly sacked for verbally abusing a leading hand who giggled during a pre-start meeting.
Holliday v Coca-Cola Amatil (Aust) Pty Ltd [2014] FWC 7441 (23 October 2014)
