Defendants in bullying and harassment cases sometimes claim their behaviour was simply reflective of their workplace culture. But how much weight does this defence carry in the eyes of the law?

Workplace banter – including swearing and unfiltered humour – is often seen as part of the territory in some industries, particularly those with high levels of pressure or long-standing norms. 

But at what point does workplace banter stop being harmless and start becoming a legal risk?

Two recent cases heard by the Fair Work Commission (FWC) show that while a culture of banter and/or swearing might be considered in a legal context, it’s not an airtight defence for misconduct.

“Workplace culture may be relevant to an assessment of whether a dismissal is harsh, unjust or reasonable,” says Lauren Brouwer-French, Senior Associate at Harmers Workplace Lawyers.

“For example, if you had all employees engaging in banter or swearing in the workplace, and then only one employee was singled out and terminated, there could be an argument that the termination in those circumstances was unfair.”

However, she says employees cannot rely on the culture argument if their language crosses the line into bullying or harassment. And nor can employers themselves – especially since the introduction of stronger obligations to manage harassment, bullying and psychosocial risks at work.

“If employers dismiss problematic behaviour as ‘banter’, then they’re not discharging these positive obligations that they have,” she says. “That’s a breach of the law, and they can be found liable for that. It also opens them up to being found liable for the unlawful conduct of the employee themselves.”

Bullying claims backed up by secret recording

Even in workplaces where the culture is very tolerant of swearing and light teasing, employers should be attuned to the fact that what’s considered ‘normal’ by one person may feel intimidating or hostile to another – especially when there’s a power imbalance involved.

“Depending on the nature of the banter, if it was repeated and it was unreasonable, then it could cross the line and become bullying,” says Brouwer-French.

“For example, if a person was to repeatedly say inappropriate things to another person, even under the guise of it being a joke, that could constitute bullying if the person on the receiving end found those kinds of comments stressful or it caused them anxiety.”

The limits of the ‘swearing culture’ argument were tested in a recent case heard by the FWC, where a former employee of a small building services company claimed he had been forced to resign due to the company director’s “aggressive and confrontational” language. 

It was established in the ruling that the director was accustomed to communicating in a blunt manner, and the FWC accepted that due to the nature of the work, “swearing is likely to be part of the everyday work culture”.

However, the employee’s argument centred around a specific meeting where the director had allegedly crossed the line with his conduct. He alleged the director had aggressively sworn at and criticised him to the point where he felt he had no choice but to resign.

Controversially, the employee secretly recorded this exchange on his phone. While the FWC acknowledged that there is no guarantee that secret recordings will be accepted as evidence, it allowed the recording to be used in this case. 

“The commission accepted the recording into evidence because it had significant probative value,” says Brouwer-French. “The recorded party did not object to the recording being accepted into evidence, which likely played a role in the decision as well. 

“The commission did however make clear that the recording would be treated with some caution, taking into account the fact that only one party to the recording was aware that what he was saying in the meeting was being recorded.”

Having heard and considered the exchange, the FWC found the employer’s conduct during the meeting was “not appropriate or acceptable behaviour in any workplace”, and had likely compelled the employee to resign. As a result, his adverse action claim has been greenlighted to proceed.

“The commission made the point that even if swearing is part of the norm, that doesn’t necessarily make it acceptable, particularly if the person who’s doing the swearing is a senior manager or a director of the business,” says Brouwer-French. 

“It’s important to recognise that there’s a power imbalance here, and what might be acceptable language between friends or in a different context is not necessarily going to be acceptable if it’s a manager swearing at a person who’s reporting to them.”

“Particularly in a sexual harassment context, making a claim that it was part of the culture is not going to get you very far.” – Lauren Brouwer-French, Senior Associate, Harmers Workplace Lawyers

When workplace jokes turn into harassment

When workplace banter crosses the line into sexual harassment – even if it’s not intentional – the legal stakes get even higher for employers.

This is especially true in light of the recent introduction of a positive duty for employers to prevent harassment, says Brouwer-French.

“Particularly in a sexual harassment context, making a claim that it was part of the culture is not going to get you very far,” she says.

“Sexual harassment doesn’t necessarily need to be overt for a reasonable person to find it offensive. It doesn’t necessarily need to be physical touching of another person – it can take the form of innuendo or inappropriate jokes.”

Whether or not the person in question intended their comment as a harmless joke will not factor into the commission’s decision-making, she says.

“Intent is not relevant to assessing whether conduct amounts to sexual harassment or to bullying. The test for sexual harassment is whether the conduct is sexual in nature and whether a reasonable person would find it offensive, humiliating or intimidating. It’s an objective test, and it’s not an assessment of what the person who made the comment meant.”

An assessment like this was conducted in a 2023 FWC case where a former sales representative at a construction company claimed his dismissal for inappropriate comments was unfair. 

The sales representative argued that the workplace had a culture where swearing was common and tolerated. However, the company said the worker’s behaviour amounted to sexual harassment and bullying. 

It had already carried out an independent investigation before the dismissal, which confirmed the offensive conduct took place. Three colleagues gave statements confirming they heard the language and found it deeply inappropriate.

Based on this, the FWC found the employer had met its obligations in investigating the misconduct and was justified in dismissing the employee.

The ruling demonstrates that a pattern of tolerance doesn’t override an employee’s responsibility to uphold respectful standards, or an employer’s duty to provide a safe workplace.

Building systems to prevent bullying and harassment

To avoid workplace banter crossing the line into misconduct, Brouwer-French stresses the importance of clear expectations and policies around what is and isn’t acceptable behaviour at work. 

“The policy should make the meaning of sexual harassment and bullying clear, and it should be explicit that these are unlawful acts,” she says. “Policies should also ideally give some examples of what conduct is unlawful, and that could include examples of banter that would constitute sexual harassment, bullying or discrimination.”

The policy should also outline a clear procedure for complaint handling. 

“It’s important that employers don’t seek to minimise or dismiss a complaint on the basis that it was just a joke,” she says.

“Complaints should be taken seriously in order to discharge the positive duties employers have in the sexual harassment and work health and safety spaces. So it’s also important that managers are properly trained to be able to manage these kinds of complaints.”

Training for managers and employees should be meaningful and ongoing, she adds, and include details of employers’ legal obligations around managing and mitigating workplace risks.

“Trauma-informed training is always beneficial, particularly if managers are going to be receiving complaints about sexual harassment,” says Brouwer-French. “It’s important that they understand you can’t victimise somebody because they’ve made a complaint.”

While policies and training are foundational in setting expectations, it’s often leadership that brings them to life, she adds.

“It’s important to have good leadership within an organisation – leaders that are placed to deal with complaints, but also leaders who are able to model appropriate workplace behaviour.”

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