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Can a disrespectful employee be fired? – or swear only moderately during working hours

 

Previously on swearing

Two years ago, we have already discussed the impact of workplace disagreements and arguments on the employment relationship. We then concluded, along the lines of consistent judicial practice, that despite each case requires individual assessment, it is certain that employee behaviour that destroys the workplace atmosphere, whether in the form of obscene communication or disrespectful behaviour, can be grounds for termination of employment," - said dr. Dóra Amina Szauter, an expert at act Bán & Karika Attorneys at Law.

Standpoint of the Curia

The Labour Code lays down the duty of cooperation between the parties, i.e. the employer and the employee as a basic principle, among the general requirements of conduct. The employee's obligation to cooperate with his/her colleagues and third parties (e.g. customers) derives from this general duty of cooperation, although it is also expressly regulated in the Labour Code. In any case, it is a breach of this obligation if the employee behaves in a disrespectful, offensive and provocative manner towards his/her colleagues. This behavior can disrupt the workplace atmosphere, create tension, reduce work efficiency, and ultimately cause damage to the employer.

In its decision of principle, the Curia stated in 2015 that a breach of the duty of cooperation as described above would justify the lawful application of the most severe sanction against the employee that is the termination without notice.

Fresh decision

A recent decision of the Curia has added further dimension to the picture described above.

According to the facts of the case, an employee working as a restocking manager used a derogatory term to a colleague in the presence of two other colleagues, behind his back, when he said „ ... his problem is that the c*m has dried into him”. The obscene comment was passed back to the ear of the offended colleague and, through him, to the head of staff. For this reason, the two staff members who were present at the making of the remark were heard about the case, during which it turned out that this was not the first time that the restocking manager had made obscene remarks on his colleagues. In another case, the restocking manager happened to say in respect of the workplace conduct of his co-workers that „Some boys behave on the job like little girls, they have pussies between their legs”.
The employer terminated the employment of the restocking manager with immediate effect, on the grounds that his conduct made it impossible to maintain the employment relationship.

The employee filed a lawsuit against his former employer, which he lost in the first instance, but in the end both the court of appeal and the Curia ruled in his favor, based on three main reasons - explained the associate of act Bán & Karika Attorneys at Law.

On the one hand, the court assessed in favor of the employee the fact that he did not address the offending remarks directly to his colleagues, so in the view of the Curia the breach of duty was not essential, as required by the Labour Code in the case of termination without notice. According to the court's reasoning, the employee's derogatory expression towards his co-workers could not be considered as a material breach of duty, because it did not interfere with the efficient performance of the work due to its lack of directness. The duty of cooperation would have been infringed only if the comments had given rise to a conflict, which directly impeding the fulfillment of the workers' obligation to perform work.

In addition to the above, the court also found in the employee's favor that his statements were made in circumstances where he did not receive the adequate and expected assistance from his colleagues while carrying out his difficult tasks.

The employer did not give the restocking manager a prior notice about his behavior and, when it became aware of the obscenity, immediately applied the most severe sanction by dismissing him with immediate effect.


Conclusion

The latest decision of the Curia makes it clear that the breach of the duty to cooperate cannot lead to a clear and immediate legitimacy of the application of dismissal by the employer. It makes a difference what terms destructing the workplace atmosphere are used, in what context and under what circumstances.

An important finding of the decision is that, although the conduct in the above case, however weightless was a breach of the ethical rules applicable to all employees in the employer's company, the most severe sanction cannot be imposed on the employee immediately without prior warning.

***

Summarizing the above, it is advisable to keep in mind the requirement of proportionality and, where appropriate, it may be worthwhile to issue a written warning to the employee who has engaged in the offending conduct for the first time, as well as to establish a workplace code of ethics that makes the boundaries clear for both the employer and the employee - concluded dr. Dóra Amina Szauter, a specialist at act Bán & Karika Attorneys at Law.

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