Controversial swearing at work ruling overturned by Fair Work Commission

A CONTROVERSIAL decision that ruled a man’s vile swearing was a “common” expression and not a sackable offence has been overturned.

A CONTROVERSIAL Fair Work ruling in favour of a union delegate who abused his colleagues as “f***ing dog c**nts” has been overturned on appeal.

The Fair Work Commission last year ordered Illawarra Coal reinstate electrical engineer Matthew Gosek, finding that such language was common across “all walks of life” and that his sacking was “harsh, unjust and unreasonable”.

Mr Gosek made the comments in text messages and threatening phone calls to seven co-workers after a heavy drinking session. At the time, he was suffering from depression and was unhappy that an internal investigation had not upheld allegations made by a union member he was representing.

“Hi Boys, I appreciate some of you responding today telling me I was out of line,” he wrote in a group text message the next day apologising for the phone calls, in which Mr Gosek had also threatened to withdraw support or expel people from the union, hunt down and destroy colleagues, and in two cases challenged the person to a physical altercation.

“The truth is you are right. I was out of line and none of you deserve my poor choice of words ... I have directed this at you at the worst time having a few beers and for that I apologise.”

In a text message to another co-worker, he said he didn’t remember the conversation. “I am not travelling well I am currently battling two issues,” Mr Gosek wrote. “One is depression and the other is alcohol abuse. A s**t house combo let me tell you.”

In his original decision, Fair Work Commissioner Bernie Riordan said the use of foul language in the workplace was “unfortunate but very commonplace”.

“In my experience the expression f***ing c**t, is commonly used across all walks of life in society,” he said. “Inserting the word ‘dog’ into the phrase, does not necessarily make the phrase anymore offensive or intimidatory.”

Mr Riordan said he had taken “very seriously” Mr Gosek’s challenge of two employees to a physical altercation, but ultimately found it was an “unlikely eventuality”. In one case, the wife of the male employee — who was “possibly twice the size of Mr Gosek — had intervened, saving him from the “possible need to seek urgent medical attention”.

“To utilise 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,” he said.

Mr Riordan, who found a “plethora of reasons” why the termination was harsh, unjust and unreasonable, said Mr Gosek had a “statutory entitlement to a ‘fair go’” and that the incident was a “one-off” as a result of side effects from his medication.

“Society is slowly trying to deal with the issues of mental health in the workplace,” he said. “Mr Gosek has bared his soul for all to see that he has been suffering from severe depression since mid 2016.”

The decision, which raised eyebrows at the time, was this week overturned by a full-bench majority of the Fair Work Commission.

In granting the appeal, deputy presidents Anne Gooley and Peter Anderson agreed with South32, the parent company of Illawarra Coal, that Mr Riordan had downplayed the seriousness of the conduct.

“We accept that by focusing on the language and not the totality of the conduct the Commissioner downplayed the character of the conduct,” they said in a ruling.

“The problem was not that Mr Gosek swore at this work mates. The conduct involved an expletive-filled tirade which included threats directed at employees because they participated in an investigation.

“While the evidence supported a finding that the term ‘dog’ was used in other contexts in this workplace, in this context however, as was acknowledged by Mr Gosek, it was used to describe people that he believed had ratted on their mate.

“Mr Gosek believed that they had lied.”

Ms Gooley and Mr Anderson's ruling added that Mr Riordan “further downplayed the threat of physical violence”.

“While he said he had taken the physical threats seriously and described them as inappropriate, he downplayed at least one of the threats because he formed the view that Mr Gosek was likely to come off second best,” the ruling said.

“He concluded that the threat was unlikely to be acted upon.

“The Commissioner characterised Mr Gosek’s conduct as being at the lower end of the scale.

“We are satisfied that the Commissioner did not properly characterise the conduct.”

Mr Gosek’s unfair dismissal claim will be redetermined next month.

A spokeswoman for South32 said: “We are working hard to create a culture where people are treated fairly and with respect, and we welcome the Fair Work Commission’s decision to grant the appeal.”

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