Home' HR Monthly : October 2018 Contents 32
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n a finely balanced case, the Fair Work
Commission (FWC) recently reinstated a
worker who drunkenly and threateningly
referred to his colleagues as “f- - -ing dogs” and
“dog c--ts”. Despite its finding that the worker’s
conduct was otherwise a valid reason for
dismissal, the FWC held that the termination
was “harsh” due to ex tenuating circumstances.
This ruling demands the question: when, if ever,
can misconduct be excused?
The recent decision in Illawarra Coal
Holdings Pty Ltd T/A South32 v Matthew
Gosek  FWCFB 1829 can certainly be
described as controversial, if only because of a
history of successive successful appeals – each
one overtu rning the decision of its predecessor.
Ultimately, the full bench of the FWC has
ordered that Gosek be reinstated to his former
position, finally drawing this saga to a close.
Barrage of abuse
In this case, the FWC heard that Gosek sent
tex t messages to several co-workers saying
only “Dog?” while under the influence of a
pernicious combination of anti-depressant
medication and alcohol. Over the ensuing hours,
he followed up on these messages with a barrage
of abusive phone calls to his colleagues, ranging
between two and 48 minutes in duration.
During these calls, Gosek variously referred
to his colleagues as “dog c--ts” and “f- - -ing
dogs,” made intimidating threats that they “will
pay” and stated that he was “going to take
[them] down”. The FWC heard evidence that
the families of some of Gosek’s colleagues were
also subject to intimidation during these calls.
For example, one of Gosek’s colleagues had to
explain to his 10-year-old son the meaning of
the vulgar language used in the phone calls.
Perhaps understandably, Gosek’s employer
dismissed him for this conduct. Gosek
subsequently brought an unfair dismissal
application in the FWC alleging the dismissal
was harsh, unjust or unreasonable for the
purposes of the Fair Work Act 2009. In
making its decision, the FWC was required
to consider two questions. Firstly, was there a
valid reason for Gosek’s dismissal? Secondly,
was the decision nevertheless ‘harsh, unjust or
unreasonable’ in the circumstances?
Subsection 387(a) of the Fair Work Act
stipulates that one of the factors the FWC
must consider when determining if a dismissal
is harsh, unjust or unreasonable is whether
there was a valid reason for terminating
the worker’s employment. In making this
assessment, the FWC had to distinguish
between factors relevant and irrelevant to the
validity of the dismissal.
Gosek’s treatment for severe depression, his
alcohol consu mption prior to the incident, and
a recent family bereavement were taken to be
relevant considerations. Nevertheless, these
factors were not considered to be sufficient to
outweigh the seriousness of Gosek’s conduct.
For this reason, the FWC concluded there was a
valid reason for Gosek’s dismissal. The question
therefore turned to “any other matters that the
FWC considers relevant” to determine if the
otherwise valid dismissal was nevertheless harsh
in the circumstances.
Ultimately, the FWC concluded Gosek’s
dismissal was harsh in the circu mstances and
ordered that he be reinstated. Notably, the
FWC placed a particular emphasis on the fact
that Gosek was dealing with the loss of a close
family member, and receiving treatment and
medication for severe depression at the time the
The FWC also noted the impact of Gosek’s
alcohol consumption on the effectiveness of the
anti-depressant medication and observed that
his otherwise unblemished record, consistent
politeness and prompt apology the following
day demonstrated that the conduct was “out of
character”. Therefore, the FWC concluded, his
behaviour was an aberration and his dismissal
was disproportionate to his misconduct.
Other factors supporting the conclusion
the dismissal was harsh included the impact
of Gosek’s mental health issues on his family,
which instigated his excessive drinking; issues
Gosek had faced in adjusting to an increase in
medication; and that Gosek was “run down and
exhausted”, sleeping for as much as 14 hours a
day in order to be left alone.
While these extenuating circumstances
tipped the balance in Gosek’s favour, the
FWC was careful not to condone Gosek’s
behaviour. Certainly, this decision should
not be interpreted as giving a carte-blanche
to employees to behave poorly, provided they
apologise the nex t day. •••
Context is all
Regardless of a worker’s conduct, HR must carefully
assess mitigating circumstances before dismissing.
BY JOHN WILSON, BRADLEY ALLEN LOVE LAWYERS
20/9/18 4:06 pm
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