[2017] FWC 4574

The attached document replaces the document previously issued with the above code on 3 November 2017.

To amend the appearance names in paragraph [3] of the decision.

Stevie Smith

Associate to Commissioner Riordan

Dated – 14 November 2017

[2017] FWC 4574[Note: An appeal pursuant to s.604 (C2017/6113) was lodged against this decision - refer to Full Bench decision dated 23 February 2018 [[2018] FWCFB 749] and Full Bench decision dated 6 April 2018 [2018] FWCFB 1829 for result of appeal.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Matthew Gosek
v
Illawarra Coal Holdings Pty Limited T/A South32
(U2017/1865)

COMMISSIONER RIORDAN

SYDNEY, 3 NOVEMBER 2017

Application for an unfair dismissal remedy.

[1] Mr Matthew Gosek was employed by Illawarra Coal Holdings Pty Ltd (formerly owned by BHP but now South32), for more than 11 years as an electrical technician. Mr Gosek’s employment was terminated on 31 January 2017.

[2] Mr Gosek is the Lodge President for the Construction, Forestry, Mining and Energy Union (CFMEU) at the Dendrobium Mine of Illawarra Coal.

[3] Leave was granted in accordance with section 596 of the Fair Work Act, 2009 (the Act) to allow Mr Gosek to be represented by Ms Claire Howell, of Counsel, instructed by Mr Phillip Pasfield of Slater & Gordon. Illawarra Coal were represented by Mr Andrew Gotting, of Counsel, instructed by Mr Andrew Gray and Ms Angela Weber of King & Wood Mallesons.

Issues

[4] The relevant issues for consideration and determination in this matter are:

a) Did Illawarra Coal have valid reason to terminate Mr Gosek?

b) Was Mr Gosek’s termination harsh, unjust or unreasonable?

c) If Mr Gosek’s termination was harsh, unjust or unreasonable, what is the appropriate remedy.

[5] At my suggestion, it was agreed by the parties that the inappropriate language that was prevalent in the facts in this matter would not be repeated but instead identified by the first letter of the word used.

Background

[6] In May 2016 a Mine Deputy, Mr Mick Goedde, (which is basically a leading hand in laymans terms), challenged Mr Ryan Miller, a mechanical tradesperson and a member of the CFMEU with whom he had a difficult relationship, in a meeting with his colleagues. Mr Goedde asked Mr Miller a question but prefaced the question with words similar to “just don’t lie to me”.

[7] Mr Miller was upset by this interaction and claimed that he had been harassed by Mr Goedde. Illawarra Coal conducted an investigation into the incident and interviewed employees who had attended the meeting. Mr Gosek was a member of this work crew, is a personal friend of Mr Miller and represented Mr Miller throughout the investigation.

[8] Illawarra Coal determined that the allegations of bullying and harassment against Mr Goedde were not substantiated. The investigation was conducted by Mr Sam Wood, the Longwall Superintendent at the Dendrobium Mine. Relevantly, Mr Wood completed the recommendation section in the Investigation Report. The then Operations Manager of the Dendrobium Mine, Mr Joel Plavecky, endorsed the findings and recommendation of Mr Wood in mid September 2016.

[9] Mr Plavecky met with Mr Gosek on 26 September 2016. They discussed the outcome of the investigation conducted by Mr Wood, which included the transfer of Mr Miller to another area of the Mine under a different Mine Deputy. Mr Plavecky proposed to convene a meeting between Mr Miller and Mr Goedde in an attempt to reconcile their differences.

[10] When approached on 27 September 2016, Mr Goedde did not commit to attend such a meeting and sought additional time to think about the proposition.

[11] Mr Plavecky met with Mr Miller on 29 September 2016. Mr Miller advised Mr Plavecky that he thought that the investigation was flawed.

[12] On the afternoon of 4 October 2016, Mr Gosek was not rostered for duty. He was drinking alcohol at the Dapto Hotel. Mr Gosek telephoned Mr Plavecky and complained that Mr Wood’s investigation was flawed. Mr Gosek advised Mr Plavecky that he would refer this matter to the coal industry regulator if Mr Plavecky did not investigate Mr Miller’s complaint further.

[13] Mr Plavecky was of the view that Mr Gosek was agitated and annoyed during this conversation. Due to the manner in which Mr Gosek conducted the conversation, ie, talking quickly, not letting Mr Plavecky respond and making baseless accusations about employees at Illawarra Coal, Mr Plavecky formed the impression that Mr Gosek was under pressure.

[14] Following the conversation with Mr Plavecky, Mr Gosek sent a text message to seven of his colleagues and to his supervisor, Mr Peter Pomana. It is uncontested that Mr Gosek’s text said “dog?”.

[15] All eight employees attempted to call Mr Gosek that afternoon to discuss the text. All eight employees spoke to Mr Gosek at some stage that afternoon or evening. Whilst Mr Gosek is unable to remember the precise wording of these conversations, it is uncontested that these telephone calls involved tense and heated discussions. Apart from the discussion with Mr Pomana, it is not in dispute that Mr Gosek used inappropriate language and called his colleagues a variety of names including: “f***ing dog, c*** and dog c***.” It is not in dispute that Mr Gosek was under the influence of alcohol at the time of these discussions.

[16] Illawarra Coal allege that Mr Gosek also threatened his colleagues during these conversations. These threats allegedly included threats to kick persons out of the Lodge, withdraw union support, hunt that person down and destroy them and challenge that person to a physical altercation.

[17] On 5 October 2016 at 4.13pm Mr Gosek sent a group text message of apology to the group of 7 employees saying:

“Hi Boys

I appreciate some of you responding today telling me I was out of line. The truth is you are right. I was out of line and none of you deserve my poor choice of words. We are all grown men and I hope you know after working together for some years now that it is very unlike me to go off that way. I am probably more angry at myself and recent disputes have taken an emotional toll. I have directed this at you at the worst time having a few beers and for that I apologise.

Regards,

Matt”  1

[18] Ten minutes later, Mr Gosek sent a text message to Mr Pomana saying:

[19] On 5 October 2016 a number of the group of 7 employees contacted their shift Supervisors, Mr Pomana and Mr Peter McLeod, to complain about Mr Gosek’s phone call.

[20] On 6 October 2016 from approximately 7.30am onwards, Mr Gosek rang each employee and sincerely apologised for his behaviour and explained some of his personal issues that he was experiencing.

[21] Mr Plavecky, upon hearing of these complaints about Mr Gosek’s behaviour, commenced an investigation and asked for the relevant employees to be invited to a meeting at the start of their next shift on 7 October 2016. Mr Plavecky attended this meeting.

[22] On 8 October 2016, Mr Plavecky contacted Mr Paul York, a Human Resources Officer of South 32 by email as follows:

Wed 5th: Matt phoned all of the above and apologised for his actions the previous day. Persons affected made calls to shift supervision (P Pomana & P McLeod-UM) to report incident and dissatisfaction with what had happened. P Gladden/G Gleeson through conversations with P Pomana were made aware of the phone conversations and discussed with myself late evening.

Thu 6th: Made phone call to P Mcleod to discuss issues reported. Corroborated what PG/GG had advised the previous day. Advised would be at Fri 7th SOS N/S to talk to the persons involved to hear first-hand and progress. Attempted to contact M Gosek and left messages (primarily to check in on his mental state).

Fri 7th: Discussion held with 7 persons contacted by Matt, and P Mcleod (UM) and diary notes taken of conversation of events. Evident some of persons still emotionally effected by events, deeply disappointed by what had occurred, and lack of response by CFMEU. Some reported concern for potential for being vilified by other CFMEU members. Majority willing to report the facts if an investigation occurred. Advised based on information collected, it would progress to a formal investigation and would pursue this as a priority.

M Gosek had advised P Pomana on Wednesday requested leave and stated would not be in on weekend. He did not present to work on Friday NS. Advised P Mcleod (UM) that if he attends work (Sat/Sun) he is to be advised that he is stood down with pay pending the investigation and to contact me.

Talk soon

Joel Plavecky

Dendrobium Mine ” 2

[23] Mr Gosek applied for, and was granted, 6 weeks leave on 8 October 2016 to enable him to deal with his personal issues.

[24] In relation to the investigation, Mr Plavecky decided to use someone he identified as an “independent” investigator, Mr Gary Hatfield. Mr Hatfield was a senior HR Business Partner from South32, but was not from the Dendrobium mine. Mr Hatfield was assisted by Ms Joanne Thew, who is a Human Resources Business Partner at Illawarra Coal. Ms Thew had never been involved in an investigation of this kind in her 5 years of employment with Illawarra Coal.

[25] On 9 October 2016, the Investigation Team conducted interviews with all but one of the employees involved in the incident on 4 October 2016. That final interview was undertaken on 11 October 2016.

[26] An initial draft Investigation Report was completed by Mr Hatfield and Ms Thew on 11 October 2016. It included the following summary of mitigating factors and matters they had taken into account in considering Mr Gosek’s behaviour:

“4.2.4 Mitigating / Other Considerations

•  Impacted employees acknowledged this behaviour was out of character for Matt Gosek

•  If accepted, Matt is currently under pressure from issues away from work

•  Matt alleged to be under pressure dealing with issues at work, in the main, and assumed Matt’s view regarding unsatisfactory outcome of the Ryan Miller allegations of workplace bullying and harassment

•  Matt was under the influence of alcohol and there is some evidence of alcohol abuse admissions

•  Matt also described “depression” in an apology email to Peter Pomana

•  At least one employee expressed the view that he would not want to see Matt lose his job over this, although the same employee expressed a view that Matt should not continue in his role of Lodge President.

•  Matt has expressed deep regret and apology for his actions.

•  Matt has accepted responsibility for his actions and does not deny that the events occurred. However, in his phone call to Gary Hatfield and Joanne Thew he expressed a view that there is nothing more to be done and that he is “not worried about it”.

•  The events occurred in connection with work but outside of the workplace. This was the view raised by the CFMEU in the initial phone call to Lee Webb.

•  Matt has been with the Company for just short of 11 years.

•  Matt regularly steps up into a Supervisory role to cover for Peter Pomana when he is on leave. Matt has participated in Code of Business Conduct training numerous times.

•  The language, particularly the use of the word “dog”, the “ranting”, loud and abusive manner of the phone calls is at the upper end of unacceptable conduct by our employees.

•  In some cases the incidents almost resulted in physical violence as a result of the phone calls

•  Doing nothing would be a slap in the face to the employees who have come forward to report the incident.

4.3 Recommendations

Doing nothing is not an option.

The mitigating factors listed above demonstrate that this is out of character for Matt and that it appears he is experiencing considerable personal difficulties at the moment – both at work and at home. Matt has shown remorse over the incidents that occurred and accepts he was out of line. Whilst this is no excuse for anyone to behave in such a manner it is an isolated event, albeit one that has had a considerable flow on effect to the families of those involved.

Serious consideration could be given to termination of employment. Similarly, consideration could be given to transferring Matt to Appin.

On balance, however, we prefer the following:

i) Move Matt to another shift – for Matt to remain on Weekend Night Shift when he has demonstrated unacceptable behaviour to a group of his fellow employees has the potential to make the working environment untenable. To keep him on the shift sends a message to those who reported the incident, and in many cases felt very uncomfortable doing so, that his unacceptable behaviour is tolerated by the Company.

ii) Matt’s role as the CFMEU Lodge President is also untenable. Of course this is not a decision the Company has control over. However, the Company, if necessary, could bring this outcome about by terminating Matt’s services or transferring him to Appin.

iii) Final written warning – no time limitation to be associated with this.” 3

[27] Mr Gosek attended an interview with the Investigation Team on 18 November 2016. Mr Gosek was supported by Mr Bob Timbs, an Official of the CFMEU. Mr Gosek and Mr Timbs advised Illawarra Coal that if they had any further questions of Mr Gosek then they would need to put them in writing.

[28] A list of questions was sent to Mr Gosek on 21 November 2016. Mr Gosek responded on 25 November 2016. Mr Gosek received support and advice from the CFMEU in compiling his responses.

[29] An amended version of the investigation report was provided to Mr Plavecky on 20 November 2016. Surprisingly, this copy of the report left blank the previously completed section 4.3 Recommendation. Ms Thew was unable to provide any explanation as to why the recommendation of the initial report had been removed or who had physically removed the recommendations from the report. 4

[30] It is not in dispute that Mr Plavecky was the ultimate decision maker, subject to review by the Vice President of Operations for South32, Mr Michael Thew. It is also not in dispute that Mr Plavecky wrote the Recommendation at section 4.3 of the Hatfield/Thew Investigation Report. Put simply, Mr Plavecky made a recommendation to himself which he then, unsurprisingly, accepted.

[31] Mr Gosek was required to show cause why his employment should not be terminated on 8 December 2016.

•  On Tuesday, 4 October 2016 you initiated and participated in abusive, intimidatory and derogatory phone calls and texts to 7 fellow CFMEU members and your Shift Maintenance Supervisor.

•  The text message you initiated to the impacted employees stated the word “Dog” and in the subsequent phone conversations you referred to them as “dog c****” and “f***ing dogs”.

•  Also in the subsequent phone conversations to fellow CFMEU Lodge members, you made a variety of intimidatory threats for example: about their ongoing involvement and support with the union; being involved in court cases; other Lodge members will know what they had done; and ongoing employment.

•  These activities extended over a period of between 4 to 5 hours, commencing from around 3pm. Calls varied in length from a couple of minutes to up to 48 minutes.

•  Those employees, and in some cases their families, viewed your conduct as offensive, intimidating or unwelcome.

In coming to the preliminary consideration of consequences, the Company has been guided by the Just Culture Decision Tree (ICHGD0002) and then the Behavioural Improvement Process (ICHP0150). Further, the Company has considered all the mitigating factors that it is aware of.

In light of the above findings and process, the Company has concluded that you have behaved in a manner towards other employees which is consistent with harassment and as such you have breached your contract of employment, South32 Values and the Code of Business Conduct. As a result of these findings the Company is now considering terminating your employment.

Show Cause Request

Prior to making a decision, the Company will provide you with a final opportunity to show cause as to why your employment should not be terminated. In this regard, we request that you provide a written response containing any such information to myself at joel.plavecky@south32.net by 12 noon (AEDT) on Tuesday 13 December 2016.

In particular, you have advised the Company of personal issues which impacted your behaviour on 4th October 2016. You have also advised yo have “evidence that firmly supports” such impact. Substantiation of these issues will be required (and include such evidence) regarding the nature and extent of these personal issues, for them to be considered further as mitigating circumstances.

Once a final decision has been made, a further meeting will be arranged to advise you of the outcome of the investigation. During this time you will continue to be paid as per normal; however you will not be required to attend work. Please note that you are expected to remain fit for work on rostered working days.

Access to Illawarra Coal’s Employee Assistance Program

I would also like to remind you that the Company can provide you with any further support via our Employee Assistance Program, should you wish to utilise it. As you are aware, this is a free, confidential, short term counselling service which can be contacted on 1300 727 308.

[32] Mr Gosek provided his Show Cause response on 13 December 2016. Mr Gosek requested a face to face meeting with the Investigations Team to discuss and provide evidence in relation to his personal issues.

[33] On 20 December 2016, Mr Hatfield sent the following email to Mr Plavecky:

“Hi Joel,

Meeting on Monday might best be described as a lot of important mitigations that we would have been better to know of much sooner. Matt supplied two forms of medical evidence in support of his advice that he was suffering from severe depression. The advice also confirmed he was taking quite strong medication and that it is well known the impacts that this could have on short term memory, behaviour etc. Adding alcohol to this mix only makes things worse.

But so that the process if as robust as it can be what now needs to happen is that after we get any reply to the attached I will update the full report (without recommendations) and resend that to you. It would be best if you read the entire report again and then consider your initial recommendation based on the new material. I have explained to Mick Thew this will add more paid at home time and whilst none of us are comfortable with that, getting the bet outcome is more important. Depending on e-mail and your availability we might still get it done the week after Christmas but we will see. We explained all that to Matt and his support person (Ian Drain).

Not the outcome we perhaps anticipated but life with people is often complicated. Have a wonderful Christmas but feel free to call me if you want to discuss in more detail.

Kind regards

[34] A further meeting between Mr Gosek and the Investigations Team took place on 3 January 2017. Mr Hatfield sent a summary of the meeting by email to Mr Plavecky, who was overseas at the time:

[35] I note that a final draft of the Investigation Report was never compiled by Mr Hatfield.

[36] When conducting the peer review, Mr Thew was provided with a copy of the Report which did not contain all of the mitigating circumstances that had been supplied by Mr Gosek which had subsequently been accepted by the Investigations Team.

[37] Mr Gosek was terminated, with payment in lieu of notice, on 31 January 2017.

•  On Tuesday 4 October 2016 you initiated and participated in abusive, intimidatory and derogatory phone calls and texts to 7 fellow Employees and your Shift Maintenance Supervisor;

•  The text message you initiated to the impacted Employees stated words to the effect of ‘dog cun*ts and f****ing dogs’;

•  Also in the subsequent phone conversations to those Employees, you made a variety of intimidatory threats for example making statements regarding their ongoing involvement and support with the unions; being involved in court cases; other Lodge members will know what they had done; and their ongoing employment.

•  These activities extended over a period of between 4 to 5 hours, commencing from around 3pm. Calls carried in length from a couple of minutes up to 48 minutes; and

•  Those employees, and in some cases their families, viewed your conduct as offensive, intimidating an unwelcome.

•  a result of these findings, your conduct and behaviour is viewed as intimidating and consistent with harassment, and as a result is a breach of Our Values, Code of Business Conduct and your Employment Contract and that it is appropriate in the circumstances that your employment be terminated. Accordingly, your employment will be terminated effective as of today’s date with payment in lieu of notice. Any accrued but untaken leave will be paid to you as of today’s date.

•  to Illawarra Coal’s Employee Assistance Program

•  I would also like to remind you that the Company can provide you with any further support via our Employee Assistance Program, should you wish to utilise. As you are aware, this is a free, confidential, short term counselling service which can be contacted on 1300 727 308.

[38] The relevant sections of the Act for an unfair dismissal proceedings include;

Outline of Submissions

[39] On behalf of Mr Gosek, Ms Howell submitted that:

a) Illawarra Coal did not have a valid reason to terminate his employment.

b) If Illawarra Coal did have a valid reason, that the termination was harsh, unjust and unreasonable due to mitigating circumstances.

c) The investigation process that was undertaken by Illawarra Coal was flawed and confused on the basis that the original recommendation of the Investigation Team was removed from the report by an unidentified person and eventually replaced by a recommendation that Mr Plavecky made to himself.

d) A final report was never produced. The peer review of Mr Plavecky’s decision undertaken by Vice President Thew was undertaken on an incomplete report on the basis that the Report did not contain all of the mitigating factors associated with Mr Gosek’s health. Further, the contents of Mr Hatfield’s email of 3 January 2017 should have been included in the report.

e) Mr Gosek was under the influence of alcohol at the time of the incident. Early the next morning, without prompting, Mr Gosek apologised to all of the 8 individuals by text. This text was followed up by direct and individual phone calls where Mr Gosek showed remorse and profusely apologised.

f) Mr Gosek was suffering from major depression since mid 2016, was under the care of a medical specialist, was working through a mental health care plan and was taking heavy medication.

g) Mr Gosek admitted to having a drinking problem, the seriousness of which became heightened when mixed with his anti depressant medication.

h) Mr Gosek was subjected to different treatment when compared to what has occurred with other employees of Illawarra Coal. Mr Plavecky acted immediately to set up a formal investigation, even though no formal complaint had been made by any of the 7 employees. Mr Plavecky initiated meetings with the affected employees upon their return to work on 7 October 2016.

i) On 8 October 2016 Mr Plavecky stated to Ms Hungerford that there was enough

evidence to proceed to a formal investigation and that was (his) intent. On the same day, Mr Plavecky also stated to Mr York that “given the risk of union mobilising and pressuring the 6 CFMEU member effected (sic) to change their story, see moving on the investigation as a priority, with formal interviews to commence tomorrow evening…Not one person effected (sic) not a union member.”

k) Mr Gosek’s conduct occurred outside of work and involved Mr Gosek using language that was commonly used at the worksite whereas Mr Goedde’s conduct occurred at work where he identified an employee as a liar and belittled him in front of his work colleagues.

l) Further, this double standard shows a pre-disposition and intent on the part of Mr Plavecky to dismiss Mr Gosek from the outset.

m) Mr Plavecky applied the “Illawarra Coal Just Culture Tree” in a perverse manner in order to compare Mr Gosek’s conduct with sabotage and malevolent damage.

n) Illawarra Coal’s case is based around hearsay statements of the 7 employees, none of whom were summonsed to give evidence by Illawarra Coal. Only Mr Pomana gave evidence in the proceedings.

o) only 1 of the 7 employees was still upset with Mr Gosek by 9 October 2017 and that this remaining employee sought out Mr Gosek at a union meeting in January to shake his hand and enquire about his wellbeing.

p) Illawarra Coal has exaggerated and overstated the reactions of the 8 employees in a self-serving manner.

q) the only experienced person in the investigation process, Mr Hatfield, was not called by Illawarra Coal and that the FWC should draw a negative inference of his nonattendance in accordance with the principles in Jones v Dunkel 9.

[40] On behalf of Illawarra Coal, Mr Gotting submitted that:

a) i: Mr Gosek offended various employees by using foul and abusive language – eg Dog, Dog C***, F***ing Dog

ii: Mr Gosek offended employees by alleging they had not supported Mr Miller, that they were lying about it and that as members of the Dendrobium Lodge they should have supported Mr Miller.

iii: Mr Gosek made a variety of intimidatory comments, for example, “I will remove you from the Lodge, I will kick you off the shift, I take it personally and will hunt you down, you won’t be able to lie in court, I will tell everyone what you have done, how about we go to the Oaks to sort it out, you should quit your job”.

iv: Mr Gosek’s phone calls were long, very abusive, loud and rambling at times. They were heard by family members who were caused distress, for example, on employee claimed “Son taped conversation… he thought I was getting sacked”, another employees wife received the initial voicemail saying “Juan – I heard you are a dog”, another employees wife answered the call the next day and spoke her mind, “this has been a big disruption for us”, another employee claimed that the call “didn’t make me feel good. I’m on anxiety medication so I was panicking as I thought it was directed at me”, “after the call I was so worked up I had an argument with my son”, “my wife heard the call and it upset her” and “felt like it was someone in authority culling me”.

v: the CFMEU lodge members expressed concerns of the risk of further retribution, for example, vilification as a result of participation in this investigation. During the investigation an event form was completed reporting that the words “Dog C****” was discovered on a piece of equipment regularly used by one of the impacted employees – a brief investigation was undertaken, however, the impacted employee did not want to pursue the matter any further.

b) Mr Gosek’s conduct was in breach of the South32 Code of Business Conduct Values at Work. Relevantly, the Code of Conduct states:

“Harassment is an action, conduct or behaviour that is viewed as unwelcome, humiliating, intimidating or offensive by the recipient… South32 does not tolerate any form of harassment or bullying in any of our workplaces. Our values support a culture where we treat people fairly, respectfully and with dignity.”

c) Mr Gosek had breached his contract of employment by undermining the employment relationship that Mr Gosek had with his supervisor and colleagues. Mr Gosek’s contract of employment states:

“2. Termination of Employment

2.1 Your employment may be terminated by Dendrobium or by you giving four week’s notice in writing or by the payment of forfeiture of four week’s Salary, as the case may be. Additional notice may be required by law.

3.1 Dendrobium’s policies and procedures as in effect from time to time apply to your employment. These policies and procedures may be varied from time to time however they do not form party of this Agreement.

d) Illawarra Coal had a valid reason to terminate Mr Gosek on the basis that its decision was sound, defensible and well founded.

e) Mr Gosek had failed to take responsibility for his abusive and threatening conduct. The fact that Mr Gosek apologised does not abrogate his actions or repair the damage to the employment relationship.

f) Mr Gosek’s actions have resulted in the loss of the necessary trust and confidence of Mr Gosek by Illawarra Coal.

g) Although the conduct occurred whilst Mr Gosek was not at work, the subject matter of the text message and the telephone calls was the outcome of the investigation into the bullying and harassment claim of Mr Miller. As a result, there is a sufficient nexus between the workplace and the abusive conduct for Illawarra Coal to conduct an investigation.

h) Mr Gosek’s conduct was intended to be offensive, a fact admitted by Mr Gosek, who stated that he wanted the men to know that he was upset that they did not support Mr Miller during the enquiry.

i) Whilst Mr Gosek has a favourable employment history, such a record does not excuse the harassment of his colleagues on 4 October 2016.

j) As a result of Mr Gosek’s conduct, Illawarra Coal is not confident that, faced with a similar situation at work where Mr Gosek may not like the considered outcome of an investigation or enquiry, Mr Gosek may repeat his abusive and threatening behaviour.

k) The fact that colourful language may be prevalent in the mining industry, does not excuse the use of such language when it is used in such a direct and personal manner. Further, Mr Gosek accepted that his language was abusive, unnecessary, inappropriate and poor.

l) Illawarra Coal conducted a very thorough investigation, allowed Mr Gosek numerous opportunities to respond, carefully considered all of Mr Gosek’s responses and finally determined that Mr Gosek lacked contrition for his conduct and that Mr Gosek’s mitigating circumstances did not reduce his culpability to a point where dismissal was not the appropriate outcome.

m) Illawarra Coal formed the view that the conduct of Mr Gosek created a clear and obvious risk to the health and safety of other employees.

n) Illawarra Coal had satisfied all of the requirements of section 387 and that Mr Gosek’s application should be dismissed.

[41] In response, Ms Howell submitted:

a) The Commission should give little or no weight to the hearsay evidence that has been provided in relation to the 7 employees who were not called to give evidence by Illawarra Coal. Ms Howell suggested that the Commission should conclude that their evidence would not have assisted Illawarra Coal’s case.

b) There is real danger in only relying on the content and sentiment in written statements. For example, Mr Pomana indicated in his statement that he was tempted to leave the mining industry and that he did not want to supervise Mr Gosek again. Under cross examination his position has changed dramatically to the point that if Mr Gosek was reinstated to his shift that he would “just deal with it.”

c) The language used by Mr Gosek (which Mr Wood describes as being “horrific”) is commonly used in the mine and ameliorates the seriousness of the conduct.

d) There was no formal or written complaint from any of the 8 employees against Mr Gosek.

e) Illawarra Coal did not follow its own policy in relation to bullying and harassment – identifying a lack of concern for the 8 employees but highlighting the real focus of the investigation – ie to dismiss Mr Gosek.

f) The failure by Illawarra Coal to follow the Grievance Policy significantly limited the remedial options available for Mr Gosek.

g) The lack of direct evidence from the other 7 employees raises serious doubt as to whether any or all of these employees accepted the apologies from Mr Gosek, which has been relied upon by Illawarra Coal to justify the immediate formal investigation.

h) There was unchallenged evidence from Mr Hackett that the 7 employees were over the incident in November 2016 and that they did not want Mr Gosek to lose his job.

i) The proposition that Mr Gosek has not taken responsibility for his actions is simply inaccurate. Further, that it is difficult to know what else Mr Gosek could have done to accept responsibility. Mr Gosek sent text messages and made phone calls to his 8 colleagues where he profusely apologised. Mr Gosek even apologised to an aggregate meeting of members at the Mine.

j) Illawarra Coal’s assertion that Mr Gosek will repeat this behaviour is implausible, speculative and self-serving on the basis that it is uncontested that Mr Gosek’s behaviour was completely out of character and Mr Gosek’s genuine remorse.

k) The characterisation of Mr Gosek’s conduct as “wilful” is unfair and inaccurate.

l) The investigation process was manifestly unfair due to Mr Plavecky providing his own recommendation to himself as to the outcome of the investigation rather than following the Illawarra Coal investigation template where the people who actually conduct the investigation complete the recommendation section of the report.

m) The Commission should reject Illawarra Coal’s submissions in relation to the absence of medical evidence. Mr Gosek identified the alcohol and medication cocktail as early as 6 October 2016. The Investigation Team accepted that the combination of depression, medication and alcohol were relevant mitigating factors in relation to Mr Gosek’s conduct.

Consideration

[42] Neither party raised any issue in relation to the Commission’s jurisdiction to determine Mr Gosek’s application.

[43] The boundaries of the conduct which falls within the phrase of “harsh, unjust or unreasonable” was explained by McHugh and Gummow JJ in Byrne v Australian Airlines 11 where they said:

“128. It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[44] In Australia Meat Holdings a Full Bench of the AIRC held, when referring to the extract from Byrne:

“The above extract is authority for the proposition that a termination of employment may be:

•  unjust, because the employee was not guilty of the misconduct on which the employer acted;

•  unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or

•  harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct.” 12

[45] I now turn to my consideration of each of the criteria identified in section 387 (see above).

Section 387(a) valid reason

[46] In Selvachandran v Peterson Plastics Pty Ltd 13 it was held:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, common sense way to ensure that the employer and employee are treated fairly.”

[47] It is necessary to carefully consider each of the issues identified by Illawarra Coal in the termination letter of 31 January 2017 to ascertain whether the decision to terminate Mr Gosek was “sound, defensible and well founded.”

[48] Allegation 1: On Tuesday, 4 October 2016 you initiated and participated in abusive, intimidatory and derogatory phone calls and texts to 7 fellow CFMEU members and your Shift Maintenance Supervisor.

[49] Mr Gosek initiated the text to his 7 colleagues. These 7 CFMEU members then called, or attempted to call, Mr Gosek. It is uncontested that Mr Gosek initiated the call to Mr Pomana. It is uncontested that Mr Gosek used inappropriate language with his 7 colleagues and that the conversation with Mr Pomana was unwelcome and challenging. I have taken this into account.

[50] Allegation 2: The text message you initiated to the impacted employees stated the word “Dog” and in the subsequent phone conversations you referred to them as “dog c****” and “f***ing dogs”.

[51] I have considered the recent Federal Court decision of Barker J in ABCC v Upton 14, where he said:

“128. Whilst it might be said that on some occasions bad language, including what might be described as unnecessarily bad language – as in this case – might be given some tolerance in a workplace…”

[52] In that case, a CFMEU Organiser had described a group of employees who had recently resigned from the Union as “f***ing dog c****”.

[53] There was uncontested evidence that this type of language is commonly used in the mine. This is not a startling revelation 15. However, I note that Ms Thew acknowledged that she was unaware of any employee who had been disciplined over the last 5 years for using foul or inappropriate language, even though it is a breach of Illawarra Coal’s Code of Business Conduct16. I note that Mr Gosek, upon reflection, accepted that his language was inappropriate and unnecessary.

[54] I agree with Ms Thew’s evidence when she said:

“PN1088

Ms Howell: Again can I suggest to you that if language such as that is used by workers to address each other commonly down the mine, then that would be highly relevant to assessing the gravity of Mr Gosek's conduct. Do you agree with that or not?

Ms Thew: I think it should be taken into account.” 17

[55] I have taken into account the fact that this type of language was commonly used in the mine, that there is no evidence that any employee has been disciplined for the use of this type of language in the past and that Mr Gosek accepted that his language was inappropriate and unnecessary.

[56] Mr Gosek acknowledged that this use of the term “dog” was intended to be derogatory. I accept that Mr Gosek’s use of the term was meant to convey to his colleagues his disappointment, as Lodge President, in their perceived participation in the Goedde Investigation. Mr Gosek was of the view that these members had not upheld the union’s principles and that they had lied to Mr Wood about the incident between Mr Goedde and Mr Miller.

[57] I have taken the derogatory language used by Mr Gosek and his criticism of these employees into account.

[58] Allegation 3: Also in the subsequent phone conversations to fellow CFMEU Lodge members, you made a variety of intimidatory threats for example: about their ongoing involvement and support with the union; being involved in court cases; other Lodge members will know what they had done; and ongoing employment.

[59] Mr Plavecky was concerned that the 7 individuals might be threatened and victimised down the track by the CFMEU and its members. He was concerned that these employees were going to be labelled as dogs and liars and that Mr Gosek would carry through with his threats and kick them out of the Lodge, withdraw the Union’s support for each individual and even try to get them terminated.

[60] Having heard and considered the evidence, I have concluded that Mr Plavecky has overreacted to Mr Gosek’s threats and that he made his decision based on his uninformed conclusions regarding the internal workings of the CFMEU.

THE COMMISSIONER:  What happens if the union - what happens at (indistinct)?  How is that any of your business?---Mr Plavecky: To me it's a concern that if those individuals are put out as liars or whatever the perception was that Matt had, then there'd be recrimination against them.” 18

“PN2087

THE COMMISSIONER: So, the issue that there may have been an internal union process through the lodge caused you some concern?---Mr Plavecky: Absolutely, they were going to - they were going to be identified as something” 19

[61] In accordance with section 590(2) of the Act, I have read the Rules of the CFMEU Mining and Energy Division. This research supports Mr Gosek’s evidence that he has no power or authority as Lodge President to expel any member from the Lodge or even withdraw Union support for any member. There is absolutely no capacity in Mr Gosek, as Lodge President, to terminate any employee from the Dendrobium Mine or from Illawarra Coal. The CFMEU does not have “preference of employment” status at the mine, nor is it compulsory for all employees to be a member of a union. Mr Gosek also has no capacity to remove an employee from a shift.

[62] Mr Plavecky’s assumption that Mr Gosek had this authority and his reliance on that assumption, affects the basis on which Mr Plavecky formed his conclusions regarding Mr Gosek’s conduct.

[63] I have taken into account the inappropriate threats made by Mr Gosek. I have taken into account that these threats were unwelcomed by the employees and therefore a breach of the South32 Code of Business Conduct.

[64] I have also into taken into account the fact that Mr Gosek was powerless to implement those threats that involved their entitlements as union members. I have taken into account the weight given to those matters by Mr Plavecky.

[65] In Rose v Telstra Corporation Limited 20, Vice President Ross (as he then was) said:

“It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited,:

* the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or

* the conduct damages the employer's interests; or

* the conduct is incompatible with the employee's duty as an employee.

In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.[30] 21

Absent such considerations an employer has no right to control or regulate an employee's out of hours conduct. In this regard I agree with the following observation of Finn J in McManus v Scott-Charlton:

“I am mindful of the caution that should be exercised when any extension is made to the supervision allowed an employer over the private activities of an employee. It needs to be carefully contained and fully justified.” 22

[66] I am satisfied that Mr Gosek’s conduct, was at odds with his duty as an employee to comply with the South32 Code of Business Conduct. I have taken this into account.

[67] Allegation 4: These activities extended over a period of between 4 to 5 hours, commencing from around 3pm. Calls varied in length from a couple of minutes to up to 48 minutes.

[68] Mr Gosek does not contest he sent text messages and engaged in these phone calls over a 4-5 hour period from the Dapto hotel. I have taken Mr Gosek’s conduct and his admission of that conduct into account.

[69] Allegation 5: Those employees, and in some cases their families, viewed your conduct as offensive, intimidating or unwelcome.

[70] None of the 7 employees gave evidence in the proceedings. This was unfortunate. As a result no evidence was provided as to how, or in what circumstances a family member could overhear the conversation with Mr Gosek. The employee on the other end of the call had the opportunity to make a deliberate decision to either have their phone on speaker or operating through Bluetooth, if the employee happened to be in a car. In either case, a simple action could have been undertaken by that employee to shield their family members from hearing Mr Gosek’s comments. At least one employee indicated in their notes that formed part of Exhibit I2 that their family heard foul and inappropriate language emanating from their mouth, not Mr Gosek’s. I consider it likely that any number of the employees would have responded to Mr Gosek in similarly worded and colourful language.

[71] I have taken the notes of the employee contained in Exhibit I2 into account. I have been obliged to consider this evidence without the direct evidence of the employees. This evidence indicates that the overwhelming reaction of Mr Gosek’s 8 colleagues was that Mr Gosek’s conduct was unwelcome and offensive.

[72] I have taken into account that on 7 October 2016, Illawarra Coal was so concerned about the mental wellbeing of one of the 7 employees who had been the recipient of Mr Gosek’s conduct that they sent him home rather than let him commence work.

[73] Having considered all of these issues, I am satisfied that Illawarra Coal had a valid reason for the termination of Mr Gosek’s employment.

Section 387(b) person notified of reason

[74] I am satisfied that Mr Gosek was notified of the reason for the investigation. I note that Mr Gosek participated in the investigation conducted by Illawarra Coal.

Section 387(c)   whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[75] I have taken into account that Mr Gosek was provided with a Show Cause Letter on 8 December 2016. Mr Gosek responded to that letter on 13 December 2016. Mr Gosek also attended a meeting on 3 January 2017 to provide confidential evidence regarding his mitigating health issues. I find that Mr Gosek was given an opportunity to respond to the reasons utilised by Illawarra Coal in relation to his conduct which eventually resulted in the termination of his employment.

Section 387(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[76] I am satisfied that, throughout this investigation process, Mr Gosek attended meetings with Illawarra Coal in the presence of his chosen support person.

Section 387(e) if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal

[77] Mr Gosek was not terminated for unsatisfactory performance. I have taken into account that Mr Gosek had a very positive employment history at Illawarra Coal, having worked there for nearly 11 years without incident or reprimand. Further, I note that Mr Gosek acted as Mr Pomana’s replacement when Mr Pomana was absent from work.

Section 387(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal

[78] I have taken into account that Illawarra Coal (South32) is a large employer with detailed and well documented investigation procedures.

s387(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[79] I have taken into account that Illawarra Coal (South32) have dedicated human resources specialists who were used to conduct the investigation into Mr Gosek’s conduct.

Section 387(h) any other matters that the FWC considers relevant.

[80] Illawarra Coal normally utilizes a “textbook” disciplinary process which starts with a thorough investigation by individuals whom are independent of the incident. The investigators then finalise a report, which includes a recommendation. This report is then submitted to the decision maker. The decision maker then makes a decision but, before announcing the decision, sends the investigation report and their decision for a peer review.

[81] In this case, the investigation was conducted by Mr Hatfield and Ms Thew. Despite formulating a detailed and considered recommendation in their initial Report, subsequent versions of their Report did not contain their recommendation but instead, contained a recommendation from Mr Plavecky. The last version of the Report was not a complete report. All of the mitigating factors that had been raised by Mr Gosek, which Mr Hatfield identified as being relevant, were not included in an updated or final copy of the Report.

[82] Relevantly, the procedural fairness safeguards that had been “built in” to the normal Illawarra Coal disciplinary process were not followed. There was no copy of a final report ever prepared by the Investigation Team. It was not possible for Mr Thew to undertake an independent “peer review” of Mr Plavecky’s decision because he was only told of the full set of circumstances during a meeting with Mr Plavecky. 23 I have taken this into account.

[83] I have also taken into account the relative lack of experience of Ms Thew and Mr Plavecky in relation to disciplinary processes of this serious a nature. Mr Hatfield was described as an experienced HR officer, who had recently retired. No reason was provided to the Commission to explain why Mr Hatfield was not called as a witness by Illawarra Coal. Ms Howell invited the Commission to draw a “Jones v Dunkel” inference as a result of Mr Hatfield’s non-involvement in these proceedings. I am satisfied that Mr Hatfield was likely to have been able to provide the Commission with relevant evidence to explain the investigative process including matters that were taken into account by Illawarra Coal that were not forthcoming from either Ms Thew or Mr Plavecky. I have taken the absence of any evidence from Mr Hatfield into account.

[84] Ms Howell raised the issue of “inconsistency of treatment” between the investigation of bullying and harassment regarding Mr Gosek’s conduct and its outcome compared to that of Mr Goedde. It is uncontested that at a start of a shift meeting on 2 September 2016, Mr Goedde said to Mr Miller either “don’t lie to me” or “just don’t lie to me”. An investigation was conducted by the Longwall Superintendent, Mr Sean Wood. According to Mr Wood’s Investigation Report, Mr Miller felt belittled by Mr Goedde’s suggestion that he had lied to Mr Goedde. Mr Brown and Mr Street agreed that Mr Goedde said to Mr Miller “don’t lie to me”. Mr Cupitt advised that he was of the opinion that Mr Miller would have felt that his character was being questioned due to the manner in which Mr Goedde had said “just don’t lie to me”.
[85] In his “Summary of Findings”, Mr Wood stated:

[86] I am satisfied that the outcome of these investigations are inconsistent and I have taken this inconsistency into account.

[87] I have taken into account the incident between Mr Layton and Mr Aaron Donnelly where Mr Donnelly allegedly described Mr Layton to his work crew as a “pest”, a “dumb c***” and went on to tell the assembled crew members Mr Layton’s failed Deputy exam score. I note that Mr Wood had a conversation with Mr Donnelly but, respecting Mr Layton’s wishes, did not take the matter any further. Mr Layton did not make a formal complaint. Similarly, I am not aware if any of Mr Gosek’s colleagues made a formal complaint or requested that an investigation be conducted into Mr Gosek’s conduct. I note that the decision to conduct an investigation into Mr Gosek’s conduct was made by Mr Plavecky. I have taken this apparent inconsistency into account.

[88] I also note that Mr Wood did not consider Mr Goedde’s behaviour towards Mr Miller as bullying or harassment because it was a one off incident 25. I am satisfied and find that Mr Gosek’s conduct on 4 October 2016 was also a one-off event albeit involving seven colleagues, ie, the text messages. All of the phone calls were initiated by the seven employees. I have taken these issues into account.

[89] I have taken into account Mr Gosek’s sincere apologies and his contrition since the incident. There is only hearsay evidence that not all of the seven employees accepted Mr Gosek’s apology. This evidence could not be tested because the employees were not called to give evidence. There is no evidence that these employees were aware of Mr Gosek’s severe depression at the relevant time or the fact that he was on strong medication with significant side effects. This hearsay evidence is of little weight or persuasive value.

[90] Ms Thew and Mr Hatfield recommended that Mr Gosek resign as President of the Lodge. Mr Gosek was prepared to resign his role as President of the Lodge in order to be reinstated. In relation to the union related concerns of Mr Pavlecky, even if they ever had any currency, that outcome would have ensured that Mr Gosek would not have any capacity to “re-offend” in the future. I have taken this into account.

[91] It is not the role of the FWC to determine appropriate standards of language in the community but to consider language used in the workplace context. The use of this type of language is commonplace in the community at large and in this workplace. There is no evidence of any employees of Illawarra Coal ever being disciplined for swearing. In determining whether Mr Gosek’s dismissal was harsh, unjust or unreasonable, I note the comments of the Privy Council in Jupiter General Insurance Co Ltd v Shroff where their Lordships held:

“On the one hand, it can be in exceptional circumstances only that an employer is acting properly in summarily dismissing an employee on his committing a single act of negligence; on the other, their Lordships would be very loath to assent to the view that a single outbreak of bad temper, accompanied, it may be, with regrettable language, is a sufficient ground for dismissal. Sir John Beaumont, C.J., was stating a proposition or mere good sense when he observed that in such cases one must apply the standards of men, and not those of angels, and remember that men are apt to show temper when reprimanded.” 26

[92] In Symes v Linfox Armaguard Pty Ltd, Cargill C held:

“[90] the applicant’s use of swear words to Mr Hala was totally inappropriate and unwarranted…I accept that the use of bad language towards another person, especially a supervisor, is of a different character to swearing at an inanimate object or its use as an adjective such as describing traffic or weather. However, it is also relevant to consider the evidence that the respondent’s workplace is one in which bad language is commonly used and in which both Mr Armstrong and Mr Hala agreed that employees may have received mixed messages about such use.” 27

[93] There is no doubt that Mr Gosek’s language was regrettable. However, I have considered, and taken into account, Mr Gosek’s situation. He was suffering from depression, on very strong medication, affected by alcohol and angered by the treatment of his co-worker. I have also taken into account Ms Thew’s evidence 28 that she was not aware of any employee being disciplined for the use of inappropriate language in the last 5 years and her concession that it was a consideration which should be taken into account. I also note that Mr Gosek did not swear at his supervisor, Mr Pomana.

[94] I have taken into account Mr Plavecky’s view that he was entitled to speculate and take action based upon his conclusions concerning the internal affairs of the CFMEU.

Conclusion

[95] Although I have taken into account all of the submissions and evidence of the parties, I have only dealt in detail in this decision with the issues I found particularly persuasive.

[96] Mr Gosek has admitted that his conduct on 4 October 2016 was inappropriate and I have already found that his conduct provided a valid reason for the termination of his employment. I have given some weight to Mr Gosek’s acknowledgment in reaching my conclusion.

[97] Mr Gosek has profusely and sincerely apologised for his behaviour. I have given some weight to Mr Gosek’s contrition and apologies in reaching my conclusion.

[98] Mr Gosek provided evidence to Illawarra Coal of the very serious mental health issues that he had been dealing with since the middle of 2016. The details of these health issues were unknown to Illawarra Coal until 3 January 2017.

[99] Put simply, on 4 October 2016 Mr Gosek was unknowingly under the influence of a strong prescribed drug which, when mixed with alcohol, provided a cocktail which transformed a normally rational and considered human being into an entirely different human being who then acted in a manner which has been unchallenged as being “out of character”.

[100] I find that Mr Gosek’s conduct was in breach of the South32 bullying and harassment policy as identified in their Code of Business Conduct. I am confident that the 8 employees who were the recipients of Mr Gosek’s text messages and participated in the phone conversations on 4 October 2016, viewed Mr Gosek’s behaviour as being “unwelcome, humiliating, intimidating or offensive”. As a result, Mr Gosek’s behaviour satisfies Illawarra Coal’s definition of harassment. It provides, as I have already found, a valid reason for the termination of his employment.

[101] Despite this finding I have considered whether it would be harsh, unjust or unreasonable to dismiss Mr Gosek for harassment when other Illawarra Coal employees, namely Mr Goedde and Mr Donnelly, have also previously been involved in conduct which breached the same policy. The highlighted evidence demonstrates that both Mr Miller and Mr Layton viewed the comments made by their supervisors as being “unwelcome, humiliating, intimidating or offensive”. I note that neither Mr Goedde nor Mr Donnelly were disciplined for their conduct, let alone dismissed. In noting this inconsistency, I acknowledge that Mr Gosek’s conduct went further in that it involves undeliverable threats of retribution.

[102] I have given some weight to this inconsistency in reaching my conclusion.

[103] I do not accept Illawarra Coal’s submission that Mr Gosek has breached his contract of employment. Given the medical background to this incident, I am not persuaded that Mr Gosek’s conduct amounted to wilful misconduct sufficient to amount to a breach of his employment contract. Illawarra Coal did not identify Mr Gosek’s conduct as serious misconduct. Mr Gosek was paid four weeks’ pay in lieu of notice, a payment to which he would not have been entitled if he was being terminated for serious misconduct.

[104] I agree with the recent comments of Barker J in ABCC v Upton. The use of foul language in the workplace is unfortunate but very commonplace. In my experience the expression f***ing c***, is commonly used across all walks of life in society. Inserting the word “dog” into the phrase, does not necessarily make the phrase anymore offensive or intimidatory. The effect of the language used on the 7 employees can be a relevant matter. However, in the absence of any evidence from any of the 7 relevant employees it is impossible to determine the extent of any hurt or humiliation felt by them. I endorse the comments in Jupiter and Linfox. Mr Gosek and his colleagues work in a coalmine – not a convent. The use of inappropriate language in this workplace is commonplace and has been condoned by Illawarra Coal for at least 5 years. I have considered whether it would be harsh, unjust or unreasonable to single out Mr Gosek and terminate his employment for his language without warning.

[105] Even though none of the seven employees were prepared to give evidence in this proceeding, I am prepared to deal with this application on the basis that Mr Gosek did make threats to them in relation to their on-going membership of the CFMEU. I agree with the decision in Rose v Telstra and have applied it to my consideration of the facts of this case. However, Illawarra Coal has no right to interfere in the operation or conduct of the CFMEU. Mr Gosek agreed that he did not have the authority to terminate a member’s membership. I note that all members of the CFMEU are given a copy of the Union’s Rules when they join. I am in no doubt that they also knew that Mr Gosek could not simply expel them from the Union. I do not accept Mr Plavecky’s assertion that these employees would be the subject of retaliatory conduct. No evidence was adduced that any such conduct had occurred in the months since October 2016 when Mr Wood’s report became public knowledge or since January 2017 when Mr Gosek was dismissed. I have taken these matters into account in my consideration.

[106] I have taken very seriously Mr Gosek’s challenge to two of the employees to a physical altercation. Such conduct is inappropriate. One of the employees, who was possibly twice the size of Mr Gosek, actually welcomed the invitation. With the common-sense interference of that employee’s wife, Mr Gosek avoided the possible need to seek urgent medical attention. To utilize an Australian expression, I am satisfied that Mr Gosek was “talking through his hat” as a result of the drug/alcohol cocktail that he had consumed. I have taken the seriousness of any physical threat, and my finding regarding the unlikely eventuality of this particular threat, into account in my consideration.

[107] Without direct evidence from any of the seven employees, I am unable to determine the effect of the 4 October 2016 conversations of the employees’ families. It would appear, at least in some of the conversations, that the families were subjected to inappropriate language emanating from either their husband or father. It would be unfair to hold Mr Gosek responsible in this scenario if it occurred. I have taken this into account in my consideration.

[108] Whilst I accept that the 7 employees may have lost trust and confidence in Mr Gosek as the President of the Lodge as a result of his behaviour, I can find no reason why this behaviour would result in Illawarra Coal loosing trust and confidence in Mr Gosek as an employee. Mr Gosek is an electrician. He acts up in the supervisory role when Mr Pomana takes leave. Mr Pomana has accepted Mr Gosek’s apology and wants to help him deal with his personal issues. Mr Gosek has not been caught stealing, malingering or acting in a fraudulent manner. There is no evidence that his work performance is poor or unsafe. In fact, there is no evidence which could substantiate an argument that Illawarra Coal had a bona fide reason to suggest that they had lost trust and confidence in Mr Gosek as an employee.

[109] I am satisfied that there are a plethora of reasons why I find that Mr Gosek’s termination was harsh, unjust or unreasonable.

[110] Mr Gosek has a statutory entitlement to a “fair go”. Society is slowly trying to deal with the issues of mental health in the workplace. Mr Gosek has bared his soul for all to see that he has been suffering from severe depression since mid 2016, that he is under the ongoing management of a mental health plan and that he is taking strong medication which has a long list of adverse side effects. These side effects are typified by the behaviour of Mr Gosek on the “one-off” occasion of 4 October 2016. This was a “one off” incident. Illawarra Coal did not give this mitigating circumstance sufficient consideration which makes Mr Gosek’s termination harsh.

[111] Mr Gosek’s inappropriate language was unnecessary. Yet, from my experience it is very common in the workplace and certain sections of Australian society. Also, although probably not approved of, language of this type has been allowed to be used without criticism and therefore condoned at Illawarra Coal for many years. No evidence has been provided to me of any other employee even being disciplined over the last five years for using inappropriate language in the workplace. I am persuaded that to set a precedent with Mr Gosek, without warning, would be unfair.

[112] I am not aware of any other employee of Illawarra Coal who has been terminated as a result of breaching the South32 harassment policy. In fact, two supervisors appear not to have been reprimanded for harassing individual employees. To terminate Mr Gosek for behaviour of this kind, and in any event at the lower end of the scale, would be unfair.

[113] I do not accept the argument that Mr Plavecky has applied the “Just Culture Tree” in a manner which is fair or pragmatic. I am satisfied that Mr Plavecky undertook this process in a purely subjective manner with a fixed view regarding his preferred outcome. Mr Gosek’s conduct was not conduct at the high end of the scale of misconduct which might include sabotage, malevolent damage or physical assault. I find that, Mr Plavecky did not apply the “Just Culture Tree” process with an appropriate level of objectivity. I have taken this finding into account.

[114] I am also satisfied that a lack of procedural fairness in the investigation process makes Mr Gosek’s termination unreasonable. The failure by Illawarra Coal to call Mr Hatfield was unfortunate. I have been invited to find that Illawarra Coal undertook this course in a deliberate attempt to hide evidence (Jones v Dunkel). Mr Hatfield was the lead investigator in the investigation. He made an initial recommendation which then, somehow, disappeared out of the report which recommended that Mr Gosek should not be terminated. Significantly, the email from Mr Hatfield to Mr Plavecky on 20 December 2016 where he said (for the sake of convenience I have reproduced this email again):

“Hi Joel,

Meeting on Monday might best be described as a lot of important mitigations that we would have been better to know of much sooner. Matt supplied two forms of medical evidence in support of his advice that he was suffering from severe depression. The advice also confirmed he was taking quite strong medication and that it is well known the impacts that this could have on short term memory, behaviour etc. Adding alcohol to this mix only makes things worse.

But so that the process if as robust as it can be what now needs to happen is that after we get any reply to the attached I will update the full report (without recommendations) and resend that to you. It would be best if you read the entire report again and then consider your initial recommendation based on the new material. I have explained to Mick Thew this will add more paid at home time and whilst none of us are comfortable with that, getting the bet outcome is more important. Depending on e-mail and your availability we might still get it done the week after Christmas but we will see. We explained all that to Matt and his support person (Ian Drain).

Not the outcome we perhaps anticipated but life with people is often complicated. Have a wonderful Christmas but feel free to call me if you want to discuss in more detail.

Kind regards

Gary Hatfield” 29

[115] It is odd that Mr Plavecky was comfortable with Mr Wood’s making a recommendation in relation to the complaint made against Mr Goedde but made and accepted his own recommendation to himself in this matter. Such a scenario appears highly unusual. So unusual in fact that Mr Hatfield, in his email of 20 December 2016, made special mention of the fact that he was going to update the full report with Mr Gosek’s “important” mitigating factors but “without recommendations”.

[116] Without Mr Hatfield’s testimony, it is open to me to assume that he did not agree with Mr Plavecky’s recommendation that appeared in the existing draft of the Report. The new information led Mr Hatfield to conclude “Not the outcome we perhaps anticipated but life with people is often complicated”. An explanation of this phrase by Mr Hatfield might have provided an important piece of evidence in the proceedings. As a result, I am persuaded to draw the Jones v Dunkel inference as advocated by Ms Howell. An explanation as to what Mr Hatfield meant by the phrase “Not the outcome we perhaps anticipated” provides important inferential evidentiary support for the accusation that Mr Plavecky had made up his mind to dismiss Mr Gosek no matter what mitigating circumstances were provided by him. This leads me to the conclusion that Mr Gosek’s termination was unreasonable.

[117] Relevantly, on 4 October 2016, Mr Gosek was living to a Mental Health Care Plan because he was suffering from severe depression due to work related stress. As a part of his health plan, Mr Gosek was taking strong medication which is used to treat major depression in adults. It is not in dispute that this drug (Cymbalta) can have a number of side effects including anxiety, agitation, panic attacks, hostility, aggressiveness and short term memory loss. Unsurprisingly, alcohol exacerbates the side effects of this drug. Mr Gosek admitted he had an alcohol problem. He was drinking excessively in the period leading up to 4 October 2016, but claims that he was unaware of the consequences of the alcohol / drug cocktail. I find that Illawarra Coals’ refusal to accept Mr Gosek’s medical circumstances as a mitigating factor for his conduct on 4 October 2016 to be unreasonable.

[118] As a result of the above reasons, I am satisfied that, whilst Illawarra Coal had a valid reason to terminate Mr Gosek, his termination was harsh, unjust and unreasonable.

Remedy

[119] Having found that Mr Gosek’s termination was harsh, unjust or unreasonable, I now turn to the issue of remedy.

[120] I have taken into account all of the parties submissions in relation to remedy.

[121] The relevant sections of the Act in relation to an appropriate remedy for a successful unfair dismissal application are:

Remedy--reinstatement etc.

Reinstatement

(1A) If:

Criteria for deciding amounts

Submissions

[122] Mr Gotting submitted that reinstatement was inappropriate on the basis that:

a) Mr Gosek’s conduct has caused significant divisions amongst the employees at the Dendrobium Mine;

b) some of the employees on the long wall crew are still suffering the effects of Mr Gosek’s conduct and Illawarra Coal are concerned about the on-going effects of the trauma if Mr Gosek returned to the workplace;

c) his Supervisor, Mr Pomana believes that he will have problems supervising Mr Gosek in the future;

d) Mr Gosek has failed to take responsibility for his conduct;

e) Illawarra Coal has lost confidence in Mr Gosek respecting the proper process for resolving disputes;

[123] Ms Howell submitted that:

Precedent

[124] In Holcim Australia v Serafina it was held that the Commission must determine the appropriateness of reinstatement before considering any other remedy.

[125] In Perkins v Grace Worldwide (Aust) Pty Ltd30, the Full Court of the Industrial Court said:

“... we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the court were to adopt to a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.

Each case must be decided on its own merits.”

[126] In Nguyen v Vietnamese Community in Australia31 a Full Bench held:

Conclusion

[127] Reinstatement is the primary remedy under the Act. I have not been provided with any persuasive reason why the primary remedy should not be applied in this case. I am persuaded that reinstatement is appropriate. It would be unfair to Mr Gosek if he was denied access to this remedy on the basis of the untested views of the 7 employees. If Illawarra Coal wanted to rely on this hearsay evidence, then some or all of these employees should have been called as witnesses.

[128] I do not accept that Mr Gosek has not taken responsibility for his behaviour. Mr Gosek admitted and has apologised for his behaviour on more than one occasion and in more than one forum. I cannot think of any further course of action that Mr Gosek could undertake in order to accept responsibility or show contrition. I accept that Mr Gosek was genuine in relation to his apologies to his colleagues.

[129] I do not accept the argument that Mr Gosek’s reinstatement would in any way indicate that Mr Gosek’s conduct was being condoned by either the Commission or Illawarra Coal. I have found that Mr Gosek’s conduct provided Illawarra Coal with a valid reason for dismissal. Mr Gosek’s conduct was clearly inappropriate.

[130] I was impressed by the evidence of Mr Pomana, which was given without fear or favour. I accept the pragmatic approach of Mr Pomana who indicated that he will “deal with the situation” if Mr Gosek were to be reinstated. I have every confidence in Mr Pomana being able to supervise Mr Gosek in the future.

[131] I agree with the Recommendation contained in the initial Report of Mr Hatfield and Ms Thew that Mr Gosek’s ongoing involvement as the President at the Denrobium Lodge is untenable. Mr Gosek, in response to a question from me, offered to resign as Lodge President if he were to be reinstated. I accept Mr Gosek’s offer.

[132] On the basis that Mr Gosek resigns from the position of Lodge President, I am confident that Mr Gosek can be successfully integrated back into his crew at Dendrobium Mine. I expect that Mr Gosek, as a sign of good faith, will not apply for any position on the Lodge Committee whilst he is employed by Illawarra Coal or at the Dendrobium Mine. Therefore, Mr Gosek will not be in any position to overreact to any like situation in the future.

[133] I Order that Mr Gosek be reinstated within 7 days of this Decision to his former position and shift.

[134] In accordance with section 391(2) of the Act, I order that Mr Gosek maintain his continuity of employment with Illawarra Coal.

[135] I have taken into account that Mr Gosek has been working for himself as an electrician since his termination. Whilst the parties held some discussions during the proceedings as to the quantum that Mr Gosek may be out of pocket, I do not believe that all of the relevant factors have been considered by the parties. Mr Gosek was previously working a weekend night shift roster – which attracted a penalty premium in accordance with the Enterprise Agreement. However, it would be unfair to force Illawarra Coal to pay this penalty premium for the inconvenience that Mr Gosek did not suffer.

[136] I order that Illawarra Coal pay to Mr Gosek his base rate of pay since his termination minus any monies paid to Mr Gosek for notice and leave. Mr Gosek’s earnings since 31 January 2017 must also be deducted, subject to any legitimate business start-up costs encountered by Mr Gosek, for which he has not claimed a tax deduction. I also impose a 25% penalty on any surplus for Mr Gosek’s poor conduct. Mr Gosek is also to be paid the appropriate employer superannuation contribution for this entire period on his base rate into his nominated superannuation account.

[137] The Commission is prepared to assist with the calculation of this quantum if the parties cannot reach a consensus.

[138] I so Order.

COMMISSIONER

 1   Witness statement Joanne Thew JT-17

 2   Exhibit G4 email dated 8 October 2016

 3   Exhibit G5 - Draft Investigation Report

 4   PN1178-1195 – Transcript 22 June 2017

 5   Investigation Report – 7 December 2016

 6   Witness statement Matthew Gosek - Annexure MG7

 7   Exhibit G4 page 45 emailed dated 3 January 2017

 8   Exhibit G4 Letter dated 31 January 2017

 9   (1959) 101 CLR 298

 10   Annexure JT-01 attachment 2

 11   (1995) 185 CLR 410

 12   (1998) 84 IR 1

 13   (1995) 62 IR 371

 14   [2017] FCA 847

 15   PN1073 – 1083 Transcript 22 June 2017

 16   PN1096-1102 – Transcript 22 June 2017

 17   PN1088 – Transcript 22 June 2017

 18   PN2081 – Transcript 23 June 2017

 19   PN2087 – Transcript 23 June 2017

 20   [1998] AIRC 1592

 21   Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285; applied in North v Television Corporation Ltd (1976) 11 ALR 599.

 22   (1996) 140 ALR 625 at 636.

 23   PN2268 – 2271 - Transcript 22 June 2017

 24   Witness statement Sean Wood annexure SW-06

 25   PN 2947 - Transcript 22 June 2017

 26   [1937] 3 All ER 67 at 73 and 74

 27   [2012] FWA 4789

 28   Exhibit I2

 29   Email from Gary Hatfield to Joel Plavecky 20 December 2016

30 [1997] IRCA 15; 72 IR 186

31 [2014] FWCFB 7198

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