In this case summary, Peter Cooke (pictured), AMMA Principal Workplace Relations Consultant, analyses why a Full Bench of the Fair Work Commission (FWC) overturned a controversial single member ruling that aggressive swearing was not exceptional workplace behaviour.

In late February, a Full Bench of the FWC, by a majority decision, overturned Commissioner Bernie Riordan’s controversial November 2017 ruling that a coal miner who had abused and threatened eight of his work mates had been unfairly dismissed and should be reinstated.

In the initial decision, Commissioner Riordan reinstated the electrician, Mr Gosek, who had been an employee of South32’s Illawarra Coal site for 11 years and was the CFMEU Lodge President.

Background

In October 2016, Mr Gosek was off duty and at a bar when he texted and phoned eight workmates to express he was upset at their role in an internal company investigation into a complaint of harassment made by a CFMEU member against a mine deputy/leading hand.

Through his texts and calls Mr Gosek verbally abused his colleagues with explicit language. He further threatened them all with expulsion from the CFMEU and challenged two of them to a physical fight.

Several of the employees contacted their supervisors to complain about Mr Gosek’s behaviour and he issued an apology to all of them the next day. South32 began an investigation into the incident.

The investigation found that the behaviour raised with South32 did in fact occur. The company went through a ‘show cause’ process with Mr Gosek but ultimately determined to end his employment due to his breach of the South32 Values, its Code of Business Conduct and his employment contract. Mr Gosek then lodged an application alleging unfair dismissal with the Fair Work Commission.

Mine site ‘not a convent’ – original decision

In the initial decision, Commissioner Riordan found while South32 did have a valid reason to terminate Mr Gosek’s employment, he took issue with their investigation process and also determined that there were a ‘plethora’ of reasons as to why the decision to terminate Mr Gosek’s employment was harsh, unjust or unreasonable.

These reasons included that Mr Gosek’s behaviour had been affected by a mental health condition, the medication he had been taking for depression, his consumption of alcohol on the afternoon he made the threats and the interplay of alcohol and his medication.

Commissioner Riordan also found that while the language Mr Gosek used was inappropriate, the workplace was a ‘coal mine not a convent’. Further, he ruled that although Mr Gosek challenged two employees to a fight during his phone calls he was ‘talking through his hat’.

Mr Gosek’s subsequent contrition for his behaviour on the Saturday afternoon was an additional factor in Commissioner Riordan’s ruling on ‘harshness’.

Commissioner Riordan then went on to find there was no reason why Mr Gosek should not be reinstated in his role.

South32 wins on appeal

South32 immediately announced they would appeal Commissioner Riordan’s decision and did so. South32 also successfully applied to stay the operation of the decision.

The Full Bench appeal majority decision found Commissioner Riordan fell into error by looking at particular aspects of Mr Gosek’s conduct such as his abusive language and his threats against his workmates as individual elements of his behaviour rather than considering the totality and gravity of his conduct.

They determined that Commissioner Riordan characterised Mr Gosek’s conduct as being ‘at the lower end of the scale’ when this conclusion was not open to the Commissioner on the evidence before him.

It is noteworthy that the majority Full Bench decision did find that it was valid for Commissioner Riordan to consider the explicit language that Mr Gosek used and whether others at the coal mine who used similar language had been disciplined for doing so.

The third member of the Full Bench, Commissioner Booth, found that Commissioner Riordan had not erred to an extent that required the appeal bench to overturn his decision.

The Full Bench decided to quash Commissioner Riordan’s decision and deal with Mr Gosek’s application themselves. They intend to do this based on the evidence and submissions already before the Commission but invited Mr Gosek and South32 to make any further submissions they want to put before the Commission in relation to this matter by 9 March 2018.

AMMA will keep members informed of further developments in this matter.

AMMA is conducting free-of-charge Member Briefing Events in March 2018 that will cover this decision in detail and other recent developments on the subject of acceptable workplace behaviour.

Members who have not yet registered to attend can do so here.