Serious misconduct vs mitigating circumstances – how do you come out of a termination decision on the right side?

If a person's employment is on the line, regardless of the severity of their conduct, employers need to be diligent in assessing the conduct under their procedures and weigh up any response by the employee that might warrant a different decision to be made.

This has been underscored by a highly-anticipated decision from the Full Bench of the Fair Work Commission, in which an electrical technician and Lodge President for the CFMEU was given his job back after being dismissed for using foul, abusive language towards his colleagues and sending threatening text messages to them (Illawarra Coal Holdings Pty Ltd T/A South 32 v Matthew Gosek [2018] FWCFB 1829).

Mr Gosek gets upset

Mr Gosek had been employed by Illawarra Coal Holdings Pty Ltd for more than 11 years as an electrical technician at Illawarra's Dendrobium mine in Illawarra.

The drama began when a member of the CFMEU made a complaint about the Mine Deputy. Mr Gosek represented the employee while the complaint was investigated by Illawarra. The allegations were not made out and Mr Gosek told the Operations Manager that he thought the investigation was flawed.

Shortly after, Mr Gosek went to the pub on a day off and consumed alcohol. While there, Mr Gosek rang the Operations Manager and again complained about the flawed investigation. He then sent a text message to his supervisor and seven colleagues saying "dogs". Each employee rang Mr Gosek and heated conversations ensued over the next 4-5 hours. Mr Gosek used inappropriate language and called his colleagues a plethora of names including "f**king dog" and "dog c***", and inappropriately threatened them because he believed that they lied about an alleged altercation with another colleague whose interests Mr Gosek was also representing.

Illawarra investigated Mr Gosek's conduct at the pub, despite none of Mr Gosek's colleagues making a formal complaint or requesting an investigation. Evidence was given that this type of language is "commonly used in the mine" and there was nothing to suggest that any employee had been disciplined for using this kind of language.

Mr Gosek agreed that his language was inappropriate and unnecessary, and apologised to his colleagues. He indicated that at the time of the conduct, he was coping with the loss of a close family member and was highly depressed and chose to drink while taking strong anti-depressants.

At first instance, Commissioner Riordan found that Mr Gosek's termination was unfair. On the day of the conduct, he accepted that 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"." Commissioner Riordan was further satisfied that the investigation into Mr Gosek's conduct did not comply with Illawarra's procedures and contributed to his finding of harshness.

Seeing Mr Gosek's conduct in context: the decision on appeal

Unusually, the Full Bench heard and determined the substantive matter on appeal (rather remitting the matter back to another Commissioner to decide), and then awarded Mr Gosek reinstatement (which is very rare, being awarded to between 1% and 3% of employees following a successful unfair dismissal claim, and is often sidelined in favour of compensation). Mr Gosek did not receive compensation, only continuity of his service.

While the Full Bench accepted that Mr Gosek was intoxicated and suffering from mental health complications at the time of his misconduct, it said that these factors alone do not make a dismissal harsh. What tipped the balance in favour of Mr Gosek, said the Full Bench, were the following additional considerations:

• Mr Gosek had an unblemished employment record in his 11 years' service at Illawarra Coal, which rendered it "out of character" and the majority of the Full Bench characterised as an "aberration";
• he immediately apologised for his behaviour; and
• the explanation Mr Gosek gave for his conduct in his submissions to the Full Bench, including:
• the severe impact of his mental illness on his family which led to his excessive drinking;
• his difficulty adjusting to the effect of the increase in his medication;
• dealing with the loss of a close family member and resulting depression;
• his feeling of exhaustion and being run down, which meant he was sleeping up to 14 hours a day and was not attentive to his family; and
• the stress following the unsuccessful result of Illawarra's investigation into the employee that Mr Gosek earlier represented.

Is it open season for swearing?

The Full Bench is not saying that anyone can swear in the workplace to their colleagues and get away with it - indeed, if faced with a different set of circumstances it is entirely possible a different conclusion would have been reached

But it does mean employers and HR practitioners really do need to pay attention to the circumstances of each misconduct case before them — being absent-mindedly consistent or dealing too severely with outliers may result in an external determination that doesn't support your decision.

While an employee's conduct in and of itself might constitute a valid reason for dismissal, it may not be enough to satisfy the Fair Work Commission that the dismissal was not harsh, unjust or unreasonable where there are factors at play that go to explaining the conduct in question. When the assessment of harshness is a discretionary one, employers need to proactively engage with the material presented to them and be prepared to back up their decisions with evidence that is credible, relevant and significant.

The Fair Work Commission's assessment of any mitigating factors in deciding whether a dismissal was unfair is a separate question of whether the employer's decision was a valid one. This will be the case regardless of whether the process utilised by an employer to reach a decision was procedurally fair, although that is not to say procedural fairness isn't an important consideration; employers should take every effort to adhere to their policies and procedures to avoid scrutiny of the way it went about a dismissal.