Articles and legal news from the Atkinson Vinden Team.

Worker who drunkenly threatened and swore at his colleagues, wins his job back again

Employment Law

A recent Fair Work Commission decision has provided some clarity regarding the weight employers must afford to mitigating factors when considering whether or not an employee’s dismissal is justified.

Illawarra Coal Holdings Pty Ltd T/A South 32 v Matthew Gosek [2018] FWCFB 749 involved an employee who had been working for Illawarra Coal for 11 years. Mr Gosek was the Lodge President for the CFMEU and had represented a CFMEU member who had made a complaint against a manager at Illawarra Coal.  Mr Gosek was very upset by the activities of 7 other employees and union members who had participated in this workplace investigation, and who had made statements to the investigator which Mr Gosek considered were untruthful.

On 4 October 2016, a day he was not rostered to work, Mr Gosek went to the pub and was drinking. It was not in dispute that he sent a text message which said “dogs” to these 7 colleagues. Telephone conversations then occurred between Mr Gosek and his colleagues, during which it was agreed that an intoxicated Mr Gosek referred to his co-workers using extremely offensive language during tense and heated discussions. He also threatened to kick them off their shifts, withdraw union support from them, and challenged one co-worker to a physical altercation.

Mr Gosek’s employment was terminated for misconduct following a workplace investigation. He subsequently lodged an application for Unfair Dismissal with the Fair Work Commission. When the case was first heard by Commissioner Riordan, he held that Illawarra Coal did have a valid reason to terminate Mr Gosek’s employment, but that the termination was harsh, unjust or unreasonable. He ordered Mr Gosek be reinstated. Illawarra Coal successfully appealed the decision, arguing that the Commission gave too much focus to the language used by Mr Gosek in his finding that such language was “commonly used in the mine”. Illawarra Coal argued that the Commissioner ought to have considered the totality of the conduct engaged in by Mr Gosek, primarily the fact that his conduct involved an expletive filled tirade which included threats to employees because of their participation in a workplace investigation.

However, when the case was finally reheard by the Full Bench of the Fair Work Commission earlier this year, they reached an interesting conclusion. While holding that the conduct engaged in by Mr Gosek was sufficiently serious enough to justify his dismissal, they nonetheless held that the mitigating factors in this case were sufficient to warrant Mr Gosek being given a reprieve.

In this regard, the Full Bench considered the fact that:

  • Mr Gosek’s prior work history was unblemished;
  • he had been dealing with severe depression at the time;
  • he had made the threats while he was drunk; and
  • he was dealing with the loss of a close family member.

A majority of the Full Bench held that, in the circumstances, the mitigating circumstances were so compelling so as to render dismissal disproportionate to the “wholly unacceptable” misconduct engaged in by Mr Gosek.

This decision is a good reminder that when an employer considers terminating an employee for serious misconduct, the behaviour should be considered in the context of both the surrounding circumstances leading to the behaviour and also in the context of the employee’s full work history.

AV Lawyers acts in dozens of unfair dismissal cases each year, both for employees and employers, and is well placed to realistically assess the merits of any dismissal case.


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