Abusive miner to be reinstated

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Abusive miner to be reinstated

A major NSW coal mining company has lost an appeal to an unfair dismissal application from one of its workers who threatened colleagues in abusive text messages and phone calls.

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A major NSW coal mining company has lost an appeal to an unfair dismissal application from one of its workers who threatened colleagues in abusive text messages and phone calls.

In a majority decision from the full bench of the Fair Work Commission, mineworker Matthew Gosek convinced Deputy President Gooley and Commissioner Booth that his dismissal had been unfair, arguing mitigating factors.

The decision was closely watched by the IR community because it put mitigating factors to the test in unfair dismissal applications.

Mr Gosek was dismissed in October 2016 after allegedly making and sending “abusive, intimidatory and derogatory phone calls and texts to seven fellow CFMEU members and his shift maintenance supervisor”.

The text message he sent stated the word ‘dog’ and in subsequent phone calls he referred to them as ‘dog cu..ts’ and ‘f…ing dogs’.

The calls varied in length from a couple of minutes to up to 48 minutes.

Mr Gosek said he engaged in the conduct because he believed the employees were not supporting a fellow employee who he believed was being bullied.

He argued there were a range of mitigating factors that meant his dismissal was harsh including that he had an unblemished record, he was drunk when the conduct occurred, he was being treated for severe depression and he apologised to the employees the following day.

Dismissal was harsh


Deputy President Gooley and Commissioner Booth said his drinking and depression were relevant factors in Gosek’s argument and deemed his dismissal 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. “Accordingly, his conduct should be seen in this context.”

“While we accept that Mr Gosek chose to drink, we consider that his judgement was sufficiently impaired by the combination of factors to allow us to conclude that his conduct was not wilful.”

They ordered he be reinstated in his role but receive no compensation for work lost as recognition of the seriousness of his conduct.

Deputy President Anderson disagreed with the rest of the bench and said that because of the seriousness of Gosek’s conduct there was a valid reason for dismissal.

“The misconduct was serious, involving foul language and threats,” he said.

“Its seriousness was aggravated by the fact that it was not isolated to a single moment of recklessness – it occurred by text and by phone in conversations with multiple employees over a number of hours.

“I also consider it relevant that Mr Gosek had no just basis on which to accuse the employees of wrongdoing.”

An order will be made to reinstate Gosek.

Read the judgment

Illawarra Coal Holdings Pty Ltd T/A South32v Gosek - [2018] FWCFB 1829

See also: 'Coal mine, not a convent': foul mouthed miner wins reinstatement

This article originally appeared on HR link, a publication of the Chamber of Commerce and Industry WA. Republished here with permission.
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