Can an Employee Be Fired for Offensive Language? Seeking Insights and Legal Precedents

Dear HR Fraternity,

We have a case at hand wherein a worker used extremely offensive language against a senior manager on the shop floor. The worker was immediately placed under suspension (pending inquiry). An investigation was conducted, and the worker was found guilty. Now, the question arises: can an employee be dismissed from service for this misconduct, and would it be considered harsh or disproportionate given the nature of the offense? Are there any case laws to support the management's decision?

Regards,
S. MANOHAR

It has been decided in various cases by the court that using abusive language against any superior is a serious misconduct that leads to the dismissal of an employee. The only precaution that has to be taken is that it should be through a proper domestic inquiry in accordance with the procedure of natural justice. Additionally, if your organization has certified standing orders, such misconduct must be mentioned there.

Regards,
Padamnave Parashar
Manager IR

Thank you, Parashar. I have also seen certain Supreme Court rulings indicating that using foul and filthy language by an employee cannot be considered minor misconduct warranting lesser punishment. Now, the issue is that the employee has realized his misconduct and is applying pressure through the Union for pardon and a second chance. However, Management is very firm that this type of misconduct cannot be taken lightly, as it may set a precedent for other workers to behave similarly, thinking Management would not take it seriously. Therefore, Management is absolutely right, and the decision will be enforced. The question is, he claims that he used such language only due to the officer's instigation. Will the Management's decision stand before conciliation if he raises a dispute under Section 2A of the ID Act?

Regards,
S. MANOHAR

As far as legality is concerned, the management is right and on merit. Shedding light on the circumstances, if management is willing to forgive the employee, it should be expressed to all employees as a caring step of the management, not a result of pressure tactics.

Regards,
Padamnave

It depends on his earlier conduct and criticality to your organization. We had a similar case happening during a very sensitive period. After reading the inquiry report but before proceeding to the courts, the employee himself offered to resign and collect all dues. There was history with this worker, so we thought it was good riddance of bad rubbish.

I found a link on gross misconduct that contains FAQs on the same. Please go through this in case it helps you.

Gross misconduct: 16 FAQs | Law Donut <link updated to site home>

There are court decisions upholding the punishment of dismissal for such disorderly and indecent behavior. However, you need to ensure that such behavior falls within the purview of the acts of misconduct specified under your disciplinary rules, and dismissal is also one of the penalties enumerated under the rules/standing orders of the company.

Factors to Consider for Commuting the Penalty

So far as commuting the penalty is concerned, it depends upon the following factors:

1. His past conduct is unblemished, and this is the first instance.
2. His behavior was not intentional but due to provocation from the manager.
3. He is a critical resource, etc.
4. He can be relocated.
5. Suspension itself serves as enough punishment to deter him from such behavior in the future.

Regards,
B. Saikumar
Mumbai.

Dear Manohar et al, The question of whether the management would be able to justify itself before the Conciliation Officer should not deter you from taking strong action in the matter. As you have seen, the earlier days of leniency are no longer prevailing in the courts, and there is a realization that if the activities are to continue, then discipline is a must. There cannot be much meaningful activity if everyone is allowed to utter obscenities and abuses against each other, leading to a situation of anarchy. Hence, you have a sufficient case to impose the penalty of dismissal from service.

Regards,
KK

Procedural Issues

1. Have you issued a second show-cause notice informing the proposed punishment? This is required, especially in cases of dismissals. I suggest that even if your Standing Order is silent about the second show-cause notice, you should follow this procedure.

2. If the employee is dismissed, he can directly approach the Labor Court and need not go through conciliation. If he opts for conciliation under 2A, the conciliation officer needs to refer the matter for adjudication and cannot reject the reference based on inquiry proceedings.

Practical Issues

1. Has he always been behaving like this? Are there any previous incidents?

2. What provoked him, and has he taken this plea before the inquiry officer?

3. Has it been proved that there was provocation? If there is any doubt about provocation in the mind of the inquiry officer, then dismissal will not stand before the Labor Court. Capital punishment is not awarded where there has been provocation.

Regards,
T. Sivasankaran

Dear Manohar & Friends,

The issue at hand is not just disciplinary but also affects productivity and business through employee morale. Thus, the following guidelines could generally outline the course of action:

Factors to Assess the Crime & Establish Reasons for This Symptomatic Behavior of a One-Off Incident or a First Indication of an Existing Larger Malaise:

(a) Has this been the first instance of the individual's behavior, and what was the level of his earlier behavior?

(b) What were the circumstances and provocations that led to it?

(i) Immediate at the work site.

(ii) In time and space at work.

(iii) In his personal life.

(c) Interpersonal behavior of the employee with other employees and a union, if any.

(d) Employee's indispensability to the process/enterprise.

(e) General prevailing emotional environment on the shop floor/office/workplace and among the employees.

(f) Direct/indirect factors that may have created the emotional environment mentioned above and the management's role in its creation.

Process of Removal if Assessment Finds the Individual is Useless to the Management & Shop/Office/Process Floor & Removal Will Serve a Larger Purpose:

(a) Institute an impartial inquiry with members and witnesses from all levels of the concerned department to check all of the above factors and establish the origin of the misconduct by the employee as deliberate misconduct, generally uncontrolled emotional behavior, unrepentant first-time irrational behavior causing irrecoverable loss greater than the individual can pay back, bad influence on the progress of the company, etc. (Generally, these exist in the SOPs of every organization).

(b) Give the individual a show-cause notice within a stipulated period and place him under suspension if required and under company policy to which he should have signed abidance at the time of enrollment.

(c) On receipt of his reply, assess it in light of the assessing factors and decide if it is sufficient or not.

(d) Record/'Minute' the result of the assessment/decision.

(e) Recommend action/approve it from the hierarchy and legal department if any and if required.

(f) Inform him of the inadequacy of his explanation.

(g) Hand him the termination orders based on all of the above.

Thus, you would have covered all procedural and legal aspects logically, sans emotion.

Regards,
Dilip

The steps you have suggested regarding the incident will be useful in searching for long-term solutions to prevent such unseemly behavior among employees. This includes conducting training on behavioral management or anger management for both workmen and supervisors. Whatever the reasons behind the workman's present behavior, it is highly subversive of discipline and does not justify his conduct of heaping insults on the manager and humiliating him by using foul language and showing outright disregard for his self-respect, esteem, and image. Thus, it needs to be dealt with from a disciplinary angle, which the company has already taken.

The only issue that remains is whether the dismissal will be disproportionate for this kind of misconduct. There are numerous judgments that have upheld dismissal for such indecent behavior. However, if there are mitigating circumstances, such as it being the first incident or it was the result of provocation from the manager, these can be considered in reducing the quantum of penalty but not dispensing with the penalty. This ensures it acts as a deterrent for other workers in the future.

Regards,
B. Saikumar
HR & Labour Law Advisor
Mumbai

If this was the first time and his previous records are not concerning, then a warning should be given, and he should be placed under observation for 1 or 2 months. If the same behavior is repeated, then termination might be an ideal scenario.

Also, it is necessary to know against whom the foul language was used and what prompted him to do that. Is it because the manager has been behaving badly with him, leading to such an incident?

Many cases where an employee leaves the job are not because of the company but due to the manager or senior who doesn't treat their subordinates properly. Thus, you also lose a valuable resource for your company.

In addition to the valuable comments posted by our experts, it would also be prudent to examine the Standing Orders of the Company and the appropriate disciplinary actions mentioned thereunder for a similar offense. Our actions shall always be in congruence with the same.

Regards,
Dr. T. Thomas.

I do not agree that someone can use unacceptable language towards their superior and ask for pardon later. Whatever the reason for provocation may be, using filthy language against an employee is not justified.

I have come across several court cases and judgments that indicate it is not unreasonable to impose the punishment of dismissal. Whether the employee has a clean track record or not, this does not mean that they will be seen leniently this time.

I support imposing capital punishment.

Regards,
V. Balaji

I feel that you have to consider his background, his habits, his family, and whether his dismissal is going to put his family on the street. If dismissed, it is likely that he will get another job elsewhere. I think, if he repents his misconduct and is willing to apologize, he may be demoted and kept on the rolls of the company since it would prove as a deterrent to others from indulging in such misconduct.

If the employee is experienced, it would help the company in avoiding getting a replacement for him.

Regards,
N K Acharya

This is just a correction to my earlier post. I meant "it is unlikely that he would get a job elsewhere if dismissed" and not "it is likely that he will get a job elsewhere." Sorry for the mistake.

Thank you,

Regards,
N K Acharya

Dear Manohar,

There are always two aspects:

1. What is legal.
2. What does the management want and what is equitable.

As you have mentioned, you have followed the legal steps required to reach the conclusion. For the punishment, what is the view of the management? Are they ready to fight the matter out to the highest possible level and stick to the decision? This is important as any weakness of yielding to the union/workmen will create an everlasting impression, and thereafter the situation may never come back to normal.

If you have a strong union, and management feels that they can get some leverage out of this situation and are flexible, it is best to use this situation to your advantage.

Regards,
Preetam Deshpande

All my friends have expressed their views, which are in line with legality. If you complied with all the formalities in the domestic enquiry, giving a fair opportunity to the charge-sheeted employee to defend his case, providing all the documents the Management depends on, and allowing the employee to cross-examine the Management witnesses, then you have ample opportunity to defend your action in the eyes of the law.

Please also note that in his defense statement, what he states is very important. If he has accepted the guilt and not stated that he hurled such words only on the provocation of the Manager/Sr. Officer, and if he has produced any witnesses in this regard, and in case the Management has rebutted all his statements, then you have a good chance even if the Employee raises the dispute under S. 10(A) of the ID ACT.

The Importance of the Charge Sheet

The drafting of the charge sheet is crucial. All those filthy languages (as it is) have to be reproduced in the charge sheet. After the due inquiry and receipt of the report from the inquiry officer, a copy of the report along with the Second Show Cause Notice is to be sent, asking the employee to submit his explanation on the findings of the inquiry officer. The disciplinary authority should analyze all the events in an impeccable manner and, after looking at the past records of the employee, make a final decision on dismissing the employee.

I hope you have complied with all the above formalities. Nowadays, courts view such misconduct very seriously. The only thing is you have to apply your mind in complying with all these formalities.

Regards,
G.K. Manjunath, Sr. Manager - HR

Legal position aside, the interest of HR should be in reforming people rather than getting rid of them, which requires no effort. If the employee has no history of indiscipline, a written warning may be adequate, along with proper counseling by an expert. Additionally, it may be fair to assign the defaulter to a different manager. This action may help prevent a recurrence.

I agree with your contention; however, I disagree with you that a workman can directly go to the Labour Court and file the case. You would appreciate that with the latest amendment dated 15.09.2010 in the ID Act, direct reference of disputes has become possible by the introduction of Sub Section (2) & (3) in the Act. Accordingly, in case of an individual dispute of a workman related to discharge, dismissal, retrenchment, or termination by any means, now the workman has the right to approach the labour court directly without waiting for conciliation proceedings and Govt. reference. But he has to wait for three months for this direct action from the date of filing his application before the conciliation officer if the Govt. is not able to complete the reference process within three months. Earlier, there was no such direct option available to the workman to approach the labour court.

Hence, a workman will have to wait for three months for this direct action at the Labour Court from the date of filing her application before the conciliation officer.

Further, I also feel that Manohar has followed well-laid-down procedures while initiating disciplinary action. I am attaching herewith a Supreme Court of India's decision holding termination as a right action for using abusive language against a superior. However, Mr. B Sai Kumar's suggestions must also be considered before you inflict the ultimate order of dismissal.

Regards,
Rakesh Pd Srivastav

I agree. What are your findings in the enquiry on provocation and the extent and recurrence of bad behavior?

Has a step of suspension (though personally, I think suspension only holds a person guilty until proved innocent and is against natural justice) been considered? Has any other punitive action under your company's Conduct Discipline Rules been considered?

Do you have a defense before the Labour Commissioner/Conciliation?

If it is a first offense, reinstatement by legal authorities might show up Management as unfair. However, if it is enforcement, have you also examined whether he was under the influence of alcohol or any other substance that could have caused aberrant behavior, and if so, what is the punitive action under your company's rules for such substance abuse (first time, repetitive)?

Suspension during the course of the final enquiry might help throw some light on the incident, and a dispassionate finding might strengthen your legal position and back up your action.

Regards,
Rukmani

Dear Siva Sankaran and all dear friends in the Cite,

The valuable opinions and suggestions on this issue were simply tremendous and encouraging. In a nutshell, what can be adduced and questioned in the profession of HR is that the HR person, in whose hands these types of disciplinary cases fall, is observed very carefully by all. What action is likely to be taken on an employee for misconduct, or whether the HR person is downplaying or scaling down the seriousness, and so on...

However, on a shop floor, each worker operates on a tight schedule and under high pressure. At times, there is always a chance for a strained relationship between a Shop Floor Engineer and an equally pressured worker to react before a senior officer. I believe that line people should have a good interpersonal relationship while executing the work from a worker. This is a skill that should be developed over the years.

In the case where an employee has used foul language, it only shows a clear case of a worker usurping the authority of a senior manager, and it cannot be taken lightly.

Supreme Court Ruling: Mahindra & Mahindra Case

I happened to stumble upon a Supreme Court ruling in the Mahindra & Mahindra case. A brief extract is given below:

New Delhi: The Supreme Court has ruled that a workman could be dismissed from service for using filthy language against a superior without any provocation.

Allowing an appeal filed by Mahindra and Mahindra Ltd, a Bench comprising Justice N Santosh Hegde, Justice Tarun Chatterjee, and Justice P K Balasubramanyan upheld the order of the Management dismissing N B Narwade.

With this order, the Supreme Court set aside three concurrent findings of three lower courts that punishment of dismissal would be disproportionate to the misconduct.

The Labour Court, Single Judge of the Bombay High Court, and its Division Bench had all dismissed the appeal filed by Mahindra and Mahindra and directed reinstatement of Narwade, who was found guilty of abusing his superior in filthy language without any provocation on November 22, 1991.

The apex Court Bench said: "In this case, all the forums below have held that the language used by the workman was filthy. We, too, are of the opinion that the language used by the workman is such that it cannot be tolerated by any civilized society."

"Use of such abusive language against a superior officer, that too not once but twice, in the presence of subordinates cannot be termed as an indiscipline calling for lesser punishment in the absence of any extenuating factor," Justice Hegde, writing for the Bench, said.

Thursday, 24 February 2005, Source: PTI

Thanks, everyone.

Regards,
S. MANOHAR
GR HR HEAD/NSPL CHENNAI
[Phone Number Removed For Privacy Reasons]

Disciplinary Actions for Abusive Language in the Workplace

Using abusive language by an employee against a superior authority should not, by itself, lead to dismissal. It is just and equitable that an overall view should be taken to impose a proportionate punishment if we want to render natural justice to the employee. The quality and content of the employee's track record, along with the scope for self-reformation, apart from all other confirmed evidence both for and against, should correctly guide the 'Disciplinary Authority'. The Disciplinary Authority should discern independently if using abusive language warrants such a severe and harsh punishment as 'Dismissal'. At its most severe, the punishment can be imposing a reasonable sufferance under major penalty proceedings.

Alternative Disciplinary Measures

Don't we have any other upright and righteous means of disciplining an employee for his worst behavior other than exercising the only soft option—that is, ruthless disciplinary action? What has happened to universally accepted 'Human Resources Dimensions' like Employee Counseling, Speaking to Employees' Union, Delivering Training Efficacy in Employee's Personal Effectiveness, Interpersonal Relationships, and Group Dynamics? These things too constitute what we liberally term as 'Out Of The Box Thinking', but we very exceptionally act on these HR virtues.

It's little wonder that most of the posts received suggest a very rigorous punishment, such as outright dismissal of an employee who is not otherwise gravely charged with violence at the workplace, perpetration of fraud, or blatantly working against the interests of the organization. Since the employee used foul and filthy language, he should be educated to suitably tender an immediate open/written unconditional apology to the concerned officer and the company; failing which, he may be threatened with 'administrative suspension with its consequences'. Quite possibly, this will afford a cooling period for the employee to introspect, regret, and show remorse for his gross misconduct, apart from the deterrent of loss of self-esteem, honor, damnation, and condemnation. 'The Fear Of Future', in all wisdom, can still discipline the employee, other than the company's need for timely prudence, as can be comfortably learned from the Maruti company's past sordid state.

Your analysis is excellent, and you have opened the mind with a human touch. One thing is sure; if an employee has a fear of the future, he is sure to be disciplined inside and outside the factory. However, the milieu has changed. People can find alternative jobs and don't care about their employment. Now, how can we expect discipline from such workers who want to dominate and show their local power on the shop floor? I have a strong opinion that in the recent past, coercing, cajoling, and counseling have become a disappearing fad. At the end of the day, productivity should be met. Each one's role has become so tight and tough. In the private sector, performance matters. The shop floor nowadays is full of frictions, and one has to get the work done from a worker.

Your point is extremely valid that employee relations need to be built and nurtured. In a good progressive company, these issues are ironed out, and there is a good binding relationship between supervisors and workers. Therefore, your approach entirely revolves around culture building and bringing in better understanding. The need for rigorous punishment to the extent of dismissal is necessary when you don't have real-time to do these correctional exercises. Your suggestions are thought-provoking and should be emulated at once.

Regards,
S. MANOHAR
GR HR HEAD/NSPL CHENNAI
[Phone Number Removed For Privacy Reasons].

Reformative vs. Deterrent Approaches in HR

Your suggestion to deal with an act of indiscipline from a reformative point of view and from the angle of behavioral therapy is undoubtedly worth considering as part of the HR process. This involves educating and enlightening both the workmen and supervisors through training and coaching on controlling behavior and anger management. Such efforts may mitigate the occurrence of such incidents, if not totally eliminate them. Therefore, an act of discipline should be seen from a different perspective.

Everyone expects an HR professional to be a corporate monk, condoning acts of abuse, forgiving acts of assault, and excusing acts of insubordination. This is too utopian to be practiced in every case. Given the school, social, and family environments in India, have we not been taught to refrain from using foul language in our childhood and adolescence? Have we not been admonished to be calm when found in an aggressive mood or action? Have we not received sermons in childhood and adolescence about the virtues of being polite to others? Have we not been counseled when caught indulging in mischief? Despite all these teachings, preachings, sermons, lectures, and lessons on good conduct from childhood, people, when they grow up, still indulge in breaching it at workplaces.

There is a subtle line of difference between a behavioral aberration and an act of indiscipline amounting to misconduct, calling for two different treatments. The former needs a reformative approach, and the latter calls for a deterrent approach—an approach that should deter not only the delinquent employee but also others from committing such acts of misconduct in the future. HR should be aware of how to draw this line of demarcation to adopt the right approach in each case. In the modern globalized environment and competitive markets, the survival of the business depends upon a disciplined workforce and peace and harmony in industrial relations. Therefore, while imposing the penalty, HR needs to balance the interests of the individual workman and the interests of the business and make a judgment on the quantum of the penalty.

Regards,
B. Saikumar
HR & Labor Law Advisor
Mumbai

Dear Sai Kumar, Absolutely true. Nothing at all can justify abusive behavior. My response was also aimed at providing our younger friends with a process of arriving at a decision and taking action that can stand the test of logic as well as legality, in case someone tries to contest it in the Management, Union, Court, or just simple office politics. Dilip.

Dear Saikumar, I fully agree with your views. You would appreciate that many times we resort to a compromising stand for fear of industrial relations going awry. Having so many challenges such as stiff competition, customer demand fulfillment, quality issues, union pressure, disruption of peace and harmony, etc., when the stakes are high, one always thinks of the easy course of action, that is, an act of condonation in the garb of modern management reformative tactics. In fact, when we resort to an easy course of action (condonation), we not only bring the issues to an illogical end but we tend to give the opportunities to rise again in the same or different colors, shapes, and sizes.

The Importance of Disciplinary Action

Disciplinary action is sometimes imperative not only to bring reformative change in the action and behavior of one particular person but also to send a strong message down the line that condonation is not sacrosanct to an act of indiscipline, and perpetrators would be dealt with severely, if need be.

Regards, Rakesh Pd Srivastav

I fully agree with your views. You would appreciate that many times we resort to a compromising stance for fear of industrial relations going awry. With numerous challenges such as stiff competition, meeting customers' demands, quality issues, union pressure, and disruption of peace and harmony, when the stakes are high, one often considers the easier course of action—an act of condonation disguised as modern management reformative tactics. In reality, when we opt for the easier path (condonation), we not only bring the issues to an illogical conclusion but also provide opportunities for them to resurface in the same or different forms.

Disciplinary Action and Its Necessity

Disciplinary action is sometimes necessary not only to instigate reformative changes in the actions and behaviors of a particular individual but also to communicate a clear message throughout the hierarchy that condonation is not absolute when it comes to acts of indiscipline, and perpetrators will face severe consequences, if required.

Regards,
Rakesh Pd Srivastav

Thanks, Mr. Srivastav, noted the latest amendment. However, the fact remains that the employee can move the court directly, and in cases of dismissals, reference will be made unlike the 1960s and 70s where many managements have managed to "no reference," and many have approached HCs for quashing the orders of the govt. In fact, the reference itself had been the subject matter in many appeals, and we used to drag cases for 10 to 15 years. I have no comments on punishment, and it is the management's decision based on so many factors. I only said if there had been any provocation from the concerned manager's side, then I would not advise dismissal, both on legal and moral grounds. If there is no such provocation, then dismissal is the punishment. It is my personal opinion...capital punishment both in criminal law and in labor law is not desirable in civilized society. If a person is using filthy language, I would ignore him. I have seen people who used filthy language have corrected when they are ignored. Many do not agree with me, and I have been successful in converting at least a dozen guys in my career. But the management always resists by saying that it is not running a "rehabilitation center," which is also true. Thanks once again, Sivasankaran

I think you may call the employee and get an undertaking from him that he has indeed been abusive and used inappropriate language. He should express remorse for his actions and apologize if he wishes to retain his job. Thereafter, on humanitarian grounds, the management may forgive him and give him one last chance to improve his conduct.

In a short time, a plethora of excellent postings have appeared from the learned members. May I present my views as under:

Priority and Safety Considerations

When seen from a priority and safety point of view, it has to be ensured that the recorded inquiry proceedings are on a fair and firm footing. They should be robust enough to withstand a possible legal battle in the future.

Standing Order and Punishment

Apart from inquiry proceedings, is there a Standing Order that provides for the punishment of dismissal? Has the employee been given a copy of the Standing Order when he joined, or were the contents explained to him in a formal training session or during induction? I am not sure whether this is mandatory by law.

Having ensured the above, comes the punishment aspect of the case. The management may take the call, taking an overall view. This could be, in addition to whatever suggestions already made, a demotion or stopping an increment, or as deemed appropriate. This via media ensures two things: punishment awarded to the guilty and sympathetic consideration has taken place.

Regards,
V. Raghunathan
Navi Mumbai