AMMA’s Principal Consultant Bill FitzGerald

AMMA principal workplace relations consultant Bill FitzGerald examines a significant determination in an unfair dismissal case which highlights the significance tribunals can place on mitigating circumstances when making a decision.

A Full Bench of the Fair Work Commission (FWC) recently determined by 2:1 majority verdict to uphold the original decision by Commissioner Riordan on 3 November 2017 to reinstate with continuity of employment but without ordering loss of remuneration despite the employee’s abusive outburst.

Background

In this case, Illawarra Coal Holdings Pty Ltd T/A South32 v Gosek [2018] FWCFB 1829 (6 April 2018), the employee had been an electrical technician with South32 for more than 11 years when his employment was terminated following a drunken afternoon rage at a pub, in which he separately communicated by text with eight of his colleagues.

Within text messages and follow-up phone calls of up to 48 minutes initiated by the employee, he accused colleagues of lying about a worksite altercation and not representing the interests of a co-worker.

The language used was abusive, insulting and threatening, calling colleagues “dogs”, “dog c**ts” and “f***ing dogs”. He made threats directed at fellow employees individually, including a threat to “hunt” a person down and “destroy” them, and he challenged another to a physical fight.

At first instance, Commissioner Riordan found that while there was a valid reason for dismissal, he took issue with their investigation process and also determined that there were a “plethora” of reasons as to why the dismissal was harsh, unjust or unreasonable.

South32 appealed the decision (see related article).

The decision

Interestingly, in the appeal decision, Deputy Presidents Gooley and Anderson (Commissioner Booth in minority) were satisfied that the initial decision was attended with sufficient doubt to warrant its reconsideration, but on re-hearing by the Full Bench the matter was dismissed by Deputy President Gooley and Commissioner Booth (Deputy President Anderson in minority). Deputy Presidents Gooley and Anderson were satisfied there was a valid reason for dismissal.

“These threats were serious. They involved both threats of violence and threats of retaliation… while Mr Gosek was entitled to discuss this issue with the employees, he was not entitled to threaten them or abuse them,” the Full Bench majority said.

But the Full Bench majority found that the dismissal was harsh.

“We accept that while there is insufficient evidence for us to conclude that the combination of alcohol and depression caused his conduct, we are satisfied that we can draw an inference that the conflagration of factors caused an otherwise reasonable man to behave in a manner that everyone agreed was out of character,” they said.

They referred to a number of factors which “tip the balance in favour of a finding that the dismissal was harsh”, including that Mr Gosek had to deal with the death of a family member, depression and physical exhaustion.

The Full Bench majority determined to reinstate Mr Gosek, being satisfied that this “once-off event, albeit directed at eight employees over several hours, is unlikely to be repeated”.

The majority Full Bench considered it appropriate to make an order maintaining the continuity of employment and continuous service, but declined to make an order for lost remuneration.

The minority decision of Deputy President Anderson is significant in that he found that the extreme conduct such as the excessive consumption of alcohol was within Mr Gosek’s control and despite some serious flaws in the investigation report, the mitigating circumstances did not make the dismissal for misconduct disproportionate.

“Mental illness may explain the misconduct in part, but the consumption of alcohol does not excuse it even if it also partially explains the behavior,” Deputy President Anderson said.

“The misconduct was at the higher end of the scale – involving threats specifically directed to individuals and not simply foul language.

“It was destructive of working relationships and inconsistent with the policies and values espoused by the employer. It was unwelcome. At the time, and to varying degrees subsequently, it upset and offended the recipients.”

Deputy President Anderson said the impact of the employee’s behavior was somewhat amended by the “timely and contrite apologies” but said other mitigating factors relating to length of service and an unblemished prior record are “weighty but on balance do not displace a sound, defensible and well-founded reason for dismissal”.

Deputy President Anderson said he would dismiss the application.

Implications

The FWC’s interpretation and application of the Fair Work Act’s unfair dismissal provisions continues to be a major area of concern for employers.

As AMMA has previously observed, the criteria for determining harshness has become highly problematic for employers as it provides members of the Commission with the discretion to award remedies for unfair dismissal based on their own interpretation of what is “harsh”, even after finding a valid reason for termination exists.

That the FWC would order reinstatement despite finding a valid reason for dismissal is particularly concerning in circumstances where an employee has been dismissed for abusive and threatening conduct directed at fellow employees.

As Deputy President Anderson rightly put it: “where the conduct of an employee, even one with a mental health diagnosis, places other employees in a position where they feel unsafe or threatened in their work environment an employer would be derelict in its duty to stand idly by.”

Termination of employment will of course not be appropriate in all circumstances. With discretion and the option to reinstate available to the FWC, it is critical to ensure a thorough process and consideration prior to acting on a termination, even for reasons involving abusive and threatening conduct towards colleagues.

Given the delicate balance of factors the FWC will consider, AMMA members are encouraged to seek advice when managing disciplinary or termination processes in their workplaces.

For further advice about themes covered in this case summary, contact AMMA’s Principal Consultant based in AMMA’s Hobart Office, Bill FitzGerald.