Mr Matthew Gosek v Illawarra Coal Holdings Pty Limited T/A South32 [2017] FWC 4574

Mr Matthew Gosek v Illawarra Coal Holdings Pty Limited T/A South32 [2017] FWC 4574 - FWC 2017 case summary — Zoe

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[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:

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[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.

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[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:

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[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:

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[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):

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[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.

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[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.

At a glance

Court

Decision date

Source

Judgment (294 paragraphs)

Mr Matthew Gosek v Illawarra Coal Holdings Pty Limited T/A South32 [2017] FWC 4574 (3 November 2017)

Parties

Legislation Cited (1)

Cases Cited (6)