Can you legally tell a co-worker to 'f--k off' in New Brunswick?
Courts have ruled on at least 2 occasions that 4-letter words aren't enough to fire a worker with cause
In many New Brunswick workplaces, a little swearing and salty language are par for the course.
Telling your co-workers to "f--k off," though? Seems a little extreme.
Strangely, New Brunswick courts have ruled on at least two different occasions that blasting a co-worker with four-letter words isn't enough to get you fired for cause.
But if there ever were times when New Brunswickers could legally unleash F-bombs at work, those times are coming to an end.
On April 1, 2019, New Brunswick will be the last province to amend its Occupational Health and Safety Act to address workplace harassment.
So what does that mean for workers itching to cuss out their colleagues?
"There's a possibility that you can do that and not be dismissed for cause," says Saint John employment lawyer Kelly VanBuskirk.
"Unfortunately, as in most legal issues, there are some complications."
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'You f--- right off'
Arguably the wildest piece of New Brunswick legal writing involving swearing at a co-worker is a 1997 decision of the New Brunswick Court of Queen's Bench.
Justice Hugh McLellan ruled Saint Johner Violet Legere was "honestly exercising her fundamental freedom of expression" by telling a colleague to "f--k off" in a grocery store.
In my opinion the phrase 'f--k off is just a forceful and intense way to say 'leave me alone' or 'go away.'- Hugh McLellan, Court of Queen's Bench justice
Legere, a YMCA-YWCA employee, was upset with her co-worker, Debbie Stubbs, over the role Stubbs's husband played building the Crane Mountain landfill in their neighbourhood.
"Mrs. Legere is one of the people in that area who feels very strongly that toxic effluent from such a use will contaminate their lands, poison the wells, and devalue their homes," McLellan wrote.
On Sept. 12, 1996, when Legere was off-duty from her job — and upset by the latest news that the development was going ahead — she was walking into the grocery store when Stubbs said, "Hi Vi."
"You f--k right off" or "F--k off," Legere allegedly replied.
The remark was made outside work hours — but she was still let go from her job a few days later because of her "inappropriate behaviour."
'Get thee behind me, Satan'
The judge acknowledged that "according to the American dictionary of slang the word "f--k" is popularly regarded as the worst of the "dirty words" and as the most reviled word in the English language."
However, McLellan wrote, "in my opinion the phrase 'f--k off is just a forceful and intense way to say 'leave me alone' or 'go away.'"
"Although some people might think Mrs. Legere's language was 'improper or inappropriate,' to give credit where credit is due, I note that Mrs. Legere did not add to that rebuke any word of personal insult directed at Mrs. Stubbs," McLellan wrote.
"A famous example of intensifying a rebuke with a demeaning personal insult is 'Get thee behind me, Satan'. Matthew 16:23."
The court ruled that orally dismissing the employee without notice was "unjust and wrongful," and she was awarded damages and costs amounting to $2,390.
'What's your f--kin' problem?'
That's not the only time New Brunswick courts have dealt with foul-mouthed co-workers.
In 2004, a majority of the NB Court of Appeal ruled a Woodstock car dealership wrongfully dismissed one of its mechanics for a heated exchange with a boss that allegedly included the rhetorical question "What's your f--king problem?"
The employee, Gerald Henry, was taking decals off a truck — a job his supervisor, Peter Graham, thought he was doing too slowly.
"Jesus Christ," Graham allegedly said. "You've been on it all afternoon."
A longer exchange followed in which Henry said, according to the recollection of one witness, "What's your f--kin' problem? You've been on my f--kin' case all day and I'm f--kin' sick and tired of it."
Henry then dared Graham to go ahead and "fire him," a request Graham instantly obliged.
When a court allowed the firing, Henry appealed.
Heat of the moment
"Vulgarities exchanged between co-workers may be tolerated in one work environment, but not in another," wrote Justice J.T. Robertson, one of three judges on the panel hearing the appeal.
"Many things are said and done in the heat of the moment that, on reflection, are regretted by all … the facts of the present case do not warrant the ultimate penalty in employment law: dismissal," Robertson wrote. A third judge, Justice Wallace S. Turnbull, dissented.
In that case, VanBuskirk said, there was evidence that the employee and his boss made "use of some hard language toward each other."
"It appears that the Court of Appeal, or at least the majority of the Court of Appeal, feels that the behaviour was reprehensible but not sufficient to justify dismissal for just cause."
A third judge, Justice Margaret Larlee, allowed the appeal and directed the dealership to pay Henry $14,200, plus interest and costs.
Risks greater than reward
Folks with a swearing problem, however, increasingly need to check themselves if they don't want to run afoul of coming anti-harassment legislation in the province.
We live in rude times VanBuskirk said — and "each person has to elevate our game, so that we're behaving in a way that's more respectful to each other."
Employees who can't control their impulses are probably facing graver legal risks than ever before.
On April 1, an amendment to New Brunswick's Occupational Health and Safety Act will come into force addressing harassment as a workplace health and safety hazard.
"Harassment" is defined as any "objectionable or offensive behaviour that is known or ought reasonably to be known to be unwelcome, including bullying or any other conduct, comment or display."
New Brunswick is the last province in Canada to introduce such an amendment.
With increasing standards for employee behaviour in Canada, VanBuskirk said his best advice is to rein it in.
"I don't think it would turn out well in any way," he said.
"You might be able to recover compensation if you do it — but at the end of the day, the risks, in my view, are greater than the reward."