“A Coal Mine - not a Convent” – termination for verbally abusing fellow employees was harsh, unjust and unreasonable “A Coal Mine - not a Convent” – termination for verbally abusing fellow employees was harsh, unjust and unreasonable

“A Coal Mine - not a Convent” – termination for verbally abusing fellow employees was harsh, unjust and unreasonable

22 June 2018 | Employer's Liability

Mr Matthew Gosek, an electrical technician, was dismissed by his employer due to an incident that occurred whilst he was under the influence of alcohol when he used inappropriate language towards eight of his co-workers over the phone. Mr Gosek made an application to the Fair Work Commission for a remedy for unfair dismissal.

In Issue

  • Whether Illawarra Coal had valid reason to terminate Mr Gosek.
  • Was Mr Gosek’s termination harsh, unjust or unreasonable.
  • If Mr Gosek’s termination was harsh, unjust or unreasonable, what was the appropriate remedy.

The Background

Mr Gosek’s employment at Illawarra Coal was terminated after he sent texts, and made phone calls, to eight of his colleagues at the mine. It was uncontested that Mr Gosek used inappropriate language and called his colleagues a variety of names. He also made various threats relating to those employees’ involvement in the CFMEU, of which Mr Gosek was Lodge President. It was not disputed that Mr Gosek was under the influence of alcohol at the time of the discussions, however, he was not rostered on for duty at the time. Mr Gosek sent text messages to all parties involved the following day apologising. He also informed his supervisor that he was currently suffering depression and alcohol abuse.

After an investigation Mr Gosek’s employment was terminated on the basis that his conduct and behaviour was intimidating and consistent with harassment.

The Decision at Trial

The Commissioner found that Illawarra Coal had a valid reason to terminate Mr Gosek, however, there were reasons why that termination was harsh, unjust and unreasonable. More specifically:

  1. There was inconsistency in how Mr Gosek was treated in comparison to other employees, who had previously been involved in conduct which breached the same policy, but there was no evidence that they had been disciplined. The use of foul language in the workplace was unfortunate but very commonplace. Mr Gosek and his colleagues worked in a coalmine, not a convent, and setting a precedent with Mr Gosek, without warning, was unfair. Illawarra Coal also had no right to interfere in the operation or conduct of the CFMEU, and the Commissioner did not accept the assertion that the employees who Mr Gosek had spoken to would be the subject of retaliatory conduct by the Union;
  2. The side effects of Mr Gosek’s existing mental health issues were typified by his behaviour. Illawarra Coal did not give this mitigating circumstance sufficient consideration, making Mr Gosek’s termination harsh; and
  3. The lack of procedural fairness in the investigation also made the termination unreasonable. Moreover, Illawarra Coal failed to call the lead investigator to give evidence, entitling the Commissioner to make a Jones v Dunkel inference that he did not agree with the recommendation that Mr Gosek’s employment be terminated.

Reinstatement, the primary remedy under the Act, was found to be appropriate in the circumstances. On the basis that Mr Gosek resigned as Lodge President (and did not apply for any position on the Lodge Committee for the duration of his employment), the Commissioner was confident that he could be successfully integrated back into his crew at the mine.

Implications for you

This decision is a timely reminder that termination of employment can be held to be harsh, unjust or unreasonable where there is a failure to apply company policies consistently, and have regard to mitigating circumstances in the particular case.

The case also shows the risk that a party may run of an adverse Jones v Dunkel inference being drawn if relevant witnesses are not called and give evidence at a hearing.

Illawarra Coal Holdings Pty Ltd T/A South32 v Matthew Gosek [2018] FWCFB 1829 (6 April 2018)

Adrian Lewis

Adrian Lewis

Senior Associate