Abuse of work colleagues insufficient ground for dismissal, says majority of the Full Bench of the Fair Work Commission

Illawara Coal alleged in a termination letter, and Mr Matthew Gosek admitted, that Mr Gosek engaged in conduct that included initiating and participating in abusive, intimidatory and derogatory communications with fellow employees.

The communications included a phone call where Mr Gosek referred to the employees as “dog c***s” and “f****** dogs” and, it was alleged by Illawara Coal, where Mr Gosek threatened to withdraw support for, or expel, people from a union, hunt down and destroy a work colleague, and in two cases where Mr Gosek challenged the work colleague to a physical altercation.

There was no dispute that Mr Gosek was under the influence of alcohol at the time of the communications and was suffering from severe depression.

At first instance the FWC found, among a “plethora” of other reasons, that Mr Gosek’s termination was harsh, unjust or unreasonable, including because Mr Gosek was entitled to, but was not afforded, a “fair go”, his conduct was a “one off incident”, and the language that he used was unfortunate but very commonplace.

The order at first instance was that Mr Gosek was to be reinstated and his continuity of employment with Illawara Coal maintained.

Illawara Coal appealed the decision.

On appeal, the majority of the Full Bench of the FWC upheld Illawara Coal’s appeal that Mr Gosek’s dismissal was unfair but, on Friday of last week (6 April 2018), decided that the dismissal was nonetheless harsh.

In making that finding, Deputy President Gooley and Commissioner Booth stated (at paragraph [56] of the appeal decision):

We are satisfied that the termination was harsh. The consequences for Mr Gosek for this one off event are significant. He lost a secure job and his reputation amongst his fellow workers and Illawarra Coal. Until this incident, Illawarra Coal had valued him sufficiently and appointed him acting supervisor in Mr Pomana’s absence. Illawarra Coal did not have any concerns until this incident that Mr Gosek would not comply with their policies and procedures and, given his appointment as acting supervisor, he had a responsibility for ensuring that others followed those procedures. Mr Gosek had to deal with a range of matters including the death of a family member, depression and physical exhaustion. As well, he abused alcohol with little regard to the potential impact this may have on his mental health. While none of this excuses his behaviour, we are satisfied that it is sufficient to tip the balance in favour of a finding that the dismissal was harsh”.

The majority did, however, state that the decision to reinstate Mr Gosek, in light of his behaviour, was finely balanced. Nevertheless, the majority concluded that an order for reinstatement was appropriate, however it did not consider that an order for remuneration lost was appropriate, so as to reflect the seriousness with which the majority viewed Mr Gosek’s conduct.

The decision at first instance can be viewed here, and the appeal decision of 6 April 2018 can be viewed here.