Expletive filled tirades of foul abuse and threats. Sackable, right? Not so fast!

In the recent decision of Illawarra Coal Holdings Pty Ltd T/A South32 v Matthew Gosek [2018] FWCFB 1829, the Full Bench of the Fair Work Commission (FWC) held that the dismissal of an employee who engaged in “expletive filled tirades of foul abuse and personal threats” towards colleagues was unfair because of the “perfect storm” of extenuating circumstances.

Background

On 4 October 2016, after work hours and while impaired by alcohol, Mr Gosek contacted seven fellow CFMEU members and his shift maintenance supervisor via phone call and text message.

During these phone calls and text messages, Mr Gosek referred to the employees as “dogs”, “dog c**ts”, and “f***ing dogs” and made a number of serious threats of violence and retaliation.

Mr Gosek engaged in this conduct because he believed that the employees had not supported another CFMEU member who was being bullied.

These activities extended over a period of four to five hours, with phone calls varying in length from four minutes to 48 minutes.

Mr Gosek admitted all aspects of the alleged conduct, despite having little to no recollection of it.

The Full Bench accepted that Mr Gosek’s behaviour, while occurring outside of work hours, was sufficiently connected with the workplace and constituted misconduct of a serious nature.  Overall, the Full Bench was satisfied that there was a valid reason for Mr Gosek’s dismissal and that Mr Gosek was afforded procedural fairness, namely, that he was notified of the reasons for his dismissal prior to his dismissal, was afforded an opportunity to respond, and was not unreasonably refused a support person.

Mr Gosek submitted that his dismissal was nevertheless harsh and unreasonable because he:

  • had a previously unblemished record during his 12 years of service;
  • was dealing with the loss of a close family member;
  • was impaired as a result of his alcohol consumption;
  • was being treated for severe depression at the time of the incident and taking medication;
  • was physically exhausted;
  • immediately apologised to the employees involved the following day;
  • had not consumed alcohol since the incident; and
  • was treated more harshly than other employees accused of bullying at work;

The majority of the Full Bench (with Deputy President Anderson dissenting) was ultimately satisfied that the conflagration of these factors caused an “otherwise reasonable man to behave in a manner that everyone agreed was out of character” and would not be repeated.  The Full Bench held that these factors were “sufficient to tip the balance in favour of a finding that the dismissal was harsh” and ordered the reinstatement of Mr Gosek.

Implications for employers

This decision demonstrates that termination of employment should not be a foregone conclusion where employees engage in misconduct, however serious.  Employers should carefully consider whether there are any mitigating factors that may render a dismissal “harsh”.  For example, an employer should consider an employee’s work history and personal circumstances, any contrition on behalf of the employee, and any financial consequences of the dismissal.

Please contact a member of Lynch Meyer’s Workplace Relations team if you require advice about terminating an employee.