Fair Work Commission raises the bar of the workplace swear jar

In an interesting decision, Suhayl Ali v DMG Building & Electrical Services Pty Ltd [2025] FWC 1244, the Fair Work Commission found a director’s workplace swearing forced an employee to resign.

This decision highlights the need for employers to ensure their supervisors, managers and directors do not swear at employees, even in a workplace culture where swearing is accepted.

Facts

Suhayl Ali (Employee) had been employed by a small electrical maintenance business (DMG). DMG alleged the Employee had voluntarily resigned from his employment and was not dismissed. However, the Employee said he was forced to resign because of a range of conduct engaged in by DMG, in particular, abusive and bullying behaviour by the director of DMG that made the Employee fear for his safety.

The Employee relied on the conduct of the director during a meeting on 25 November 2024, which the Employee had secretly recorded. He resigned two days after the meeting.

During the meeting, the director and the Employee discussed the Employee’s work performance. They also discussed the director’s concerns about the Employee not having told the director he was visiting a mosque to pray during work hours and causing wear and tear to a work vehicle he was using to attend the mosque. The Employee likened this to wear and tear on his personal phone when used for work purposes.

Amongst other things, the director said to the Employee, in a raised voice:

The bullsh*t about wear and tear on the phone is a f*cking joke’ --- ‘Are you f*cking serious, are you serious?’ --- ‘There’s two things I can’t f*cking tolerate its people who steal and people who lie. Right now you’ve done that.’ --- ‘I don‘t want any negative nancies running around my company f*cking becoming toxic to other blokes. It festers. What we do with those people, we f*cking weed them out… You need to be on the same page as everyone.

The meeting ended with the director saying he would work with the Employee to accommodate his religious practices if the Employee was clear on what times he would not be available. The Employee took personal leave the next day, texting the director to say, ‘my mental health is not in the right place.’

The Employee resigned the following day and later made a general protections application to the Fair Work Commission (FWC) alleging he was unlawfully dismissed from his employment.

FWC’s findings

The FWC was required to consider the meaning of ‘dismissed’ for the purposes of the Fair Work Act 2009 (Cth), which is set out in section 386. This includes where ‘the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.’

The FWC found the director was acting in an aggressive, confrontational and inappropriate way that was likely to make the Employee feel intimidated and made him feel scared. The FWC further found the director’s behaviour in the meeting would make a reasonable person in the Employee’s position intimidated.

The FWC found the language and behaviour directed towards the Employee at the meeting on 25 November 2024 was not appropriate or acceptable behaviour in any workplace. The FWC held that an employer and an employee do not approach each other on a level playing field. It stated that an employer is in a position of power; behaviour that might be acceptable with a friend or in another context, is not acceptable or appropriate with an employee.

The FWC concluded:

I do not think [the director] intended for Mr Ali to resign. However, I find that the probable result of an employer engaging in the aggressive and confrontational conduct described in the 25 November 2024 meeting was such that Mr Ali would resign. Given Mr Ali was reasonably concerned for his mental and physical safety, I find that Mr Ali had no effective or real choice but to resign.

Lessons for employers

This decision is surprising, given the FWC also found:

• the meeting ended with the director saying he would work with the Employee to accommodate his religious practices if the Employee was clear on what times he would not be available,
• the director runs a small business in a blue-collar environment without the assistance of a human resources manager, and swearing is likely to be part of the everyday work culture, and
• the director did not intend for the Employee to resign.

It is possible that, had DMG argued the case differently, the FWC may have reached a different conclusion. This is because leading decisions have held that all of the circumstances, and not only the act of the employer must be examined; whether the act of the employer resulted in the employee leaving involuntarily is not the only feature to be examined

Regardless, this decision represents a development of the law in favour of employees and against workplace swearing, even where it may be part of everyday work culture.

Employers should take note of the decision and review their tolerance for aggressive swearing in the workplace, especially by supervisors, managers and directors. It is clear the FWC may be prepared to find the probable result of such conduct is that an employee has no effective or real choice but to resign, resulting in exposure to liability for a dismissal-related claim.