Yes, according to a recent decision in Australia’s Fair Work Commission concerning an employee who claimed that her resignation after an altercation with her boss was unfair constructive dismissal. The boss, Mr Gamble, contested this and claimed that Ms Reid resigned voluntarily after a heated exchange thus :
Ms Reid: “I have six things to finish first! Which bloody one do you want me to do now? I have had enough of this s***!”
Mr Gamble: “F*** off, Maryanne, you can’t keep speaking to me that way.”
Ms Reid: “Right, you told me to f*** off. I have had enough of this s***, I’m leaving!”
Downton Abbey it was not. There was no dispute that Mr Gamble told Ms Reid to f*** off, or (perhaps more tellingly) that he left her a voicemail message the following day when she didn’t attend the office asking her to “finalise things”. The FWC held that “on any objective analysis, where an employer tells and employee to “f*** off”, and then does not take any action to explain or withdraw that expression it constitutes a direction to the employee to leave the workplace. As such, it constituted a constructive dismissal”.
As a small business employer (i.e. fewer than 15 employees), Ms Reid’s employer was also required to comply with the Small Business Fair Dismissal Code to prove procedural fairness which, it failed to do. Consequently, the FWC found in Ms Reid’s favour.
Which begs the question of what the FWC had in mind by its reference to “explaining” the term. Does that mean that there will be contexts in which it is acceptable (in the sense of lawful, rather than desirable) to tell one of your employees to take a hike in that way? Without wishing to promote “f… off” as good management practice in any way, it would potentially be possible to pray in aid issues such as:
(i) provocation – if the FWC had accepted that Ms Reid had sworn at her boss first, the impact of his language on her would have to be seen as diminished;
(ii) stress – if it were apparent to the victim that the words had been said by a boss under great pressure and so perhaps did not represent his/her actual thinking, that would have to be relevant;
(iii) working environment – bad language is more prevalent in some industrial environments to the point where it is part of many daily exchanges and so is practically an endearment;
(iv) context – no better example here than an old UK case, Futty –v- Brekkes Ltd in 1974. Futty was a fish-filleter on Hull Docks (see “working environment” above), having a bad day and griping constantly to all who would listen. Eventually his boss rounded on him and said (I take this direct from the Law Reports) “If you don’t like the job, f… off”. Futty took this as his dismissal, and sued. In what may have been the first ever judicial explanation of the precise meaning of “f… off” in the employment arena, the High Court disagreed. The phrase was used here more as a “general exhortation”, it said, indeed practically as counselling. It should have been heard by Futty not as his marching orders but instead as “If you are complaining about the fish you are working on or the quality of it or if you do not like what in fact you are doing then you can leave your work, clock off, and you will be paid up to the time when you do so. Then you can come back when you are disposed to start work again”.
(v) apology – but the best response of all to realising suddenly that you have just told an employee to f… off is to apologise, instantly and fulsomely. None of the points above make it a good thing to say in the workplace, but the FWC is likely to recognise that these things happen and the mark of the employer and the salvaging of the situation will then lie in its handling of the aftermath.
