Mitigating circumstances for misconduct results in employee’s reinstatement

16 July 2018

This is the story of a worker who sent an offensive text message to his co-workers, and the legal battle that ensued. The key message… context is key.

Matthew Gosek worked at Illawarra Coal Holdings for more than 11 years as an electrical technician. He was also the Lodge President for the CFMEU at the Dendrobrium Mine owned by Illawarra Coal.

On May 2016, a CMFEU member (Ryan Miller) was challenged by a Mine Deputy (Mick Goedde), Goedde said to Miller “just don’t lie to me”.  Miller alleged harassment, Gosek supported him during the investigation process.

Seven other union members who witnessed the exchange gave evidence and when the employer determined that the harassment allegations were unsubstantiated Gosek was upset and formed the view that the other employees lied about what had occurred.

One afternoon at the pub in October 2016, over the course of several hours, Gosek sent text messages to the 7 witnesses and his own supervisor simply stating “dog?”

Each of the 7 employees then telephoned Mr Gosek and in the conversations that followed, Mr Gosek:

  • made very derogatory comments to the employees
  • was abusive, threatening, used foul language, he was intimidating and made a variety of threats  about removing them from the union, from the shift, about them being exposed in court, that  “he took it personally and will hunt you down”, and with a couple of employees challenged them to a fight
  • some of these calls were overheard by family members

The next day some of the recipients told Gosek he was out of line and a couple complained to their supervisor.

Gosek sent texts apologising, in his message to his own supervisor he said he couldn’t remember the conversation but apologised if he was abusive. Two days later he also called each person to apologise.

An investigation was conducted, a report was prepared, and Gosek was provided with the opportunity to explain any mitigating circumstances and he responded that:

  • he was under a lot of stress in relation to the Miller investigation
  • had a history of depression and work stress
  • he had been suffering severe depression since July that year
  • his medication had been doubled in July that year
  • he was on a Mental Health Care Plan
  • he was drinking excessively and was unaware that it may react badly with his medication, but had not had a drink since the incident

The investigation report was not amended to include the mitigating circumstances and there was no evidence the decision maker had taken them into account. Illawarra elected to terminate Gosek’s employment.

Decision at first instance

At first instance Commissioner Riordan accepted that there was a valid reason for termination, and the procedural requirements surrounding support person and opportunity to respond etc had been met.

However the Commissioner also took into account that:

  • the mitigating factors detailed by Gosek had not been included in the final copy of the investigation report
  • there was some inconsistency of treatment between the situation with Gosek versus the lack of consequences for Goedde following the Miller incident, and a third incident between other employees
  • Gosek had made unprompted sincere and contrite apologies
  • Gosek was prepared to resign as President of the Lodge in order to be reinstated
  • it was generally accepted that Gosek’s behaviour was out of character

The Commissioner found that the termination was harsh, unjust and unreasonable and ordered reinstatement, continuity of employment and lost earnings and superannuation (minus monies earned post termination) less 25% as a penalty for his poor conduct.

The appeal

The Employer appealed.

In a split decision, the majority again determined that there was a valid reason for termination, and the procedural requirements had been met, but it also considered the mitigating factors:

Submission Finding of the majority
1 Gosek had a previously unblemished record of 11 years of service. Appropriate to consider whether the conduct was an aberration and that other factors explain the conduct making dismissal harsh.
2 Gosek was not at work when the conduct occurred. There was sufficient connection to the workplace.
3 Gosek was impaired as a result of his alcohol consumption. Relevant, but mere fact of intoxication doesn’t persuade them dismissal was harsh.
4 Gosek was being treated for severe depression at the time of the incident and taking medication. Relevant, but by itself does not persuade them that dismissal was harsh.
5 Gosek immediately apologised to the employees the following day. Doesn’t excuse or explain his behaviour but supports a finding the conduct was an aberration and dismissal was harsh.
6 Gosek had not consumed alcohol since the incident. Not satisfied this is relevant to whether dismissal was harsh.
7 Gosek was treated more harshly than others accused of bullying. Not satisfied the conduct of the other employees was in the same league as Gosek.
8 Gosek engaged in the conduct because he believed the employees were not supporting a fellow employee he believed was being bullied. No justification for his conduct.

The majority also referenced the additional factors Gosek relied on during the case as justifying his conduct or supporting a finding that the dismissal was harsh:

  • Mr Gosek’s mental illness had an extremely severe impact on his family and that this had led to excessive drinking on his part.
  • Mr Gosek was having trouble adjusting to the effects of the increase in his medication.
  • Mr Gosek was dealing with the loss of a close family member and “depression was basically running his life.”
  • Mr Gosek was feeling run down and exhausted, had not been attentive to his family and was sleeping up to 14 hours a day as a way of being left alone.
  • Mr Gosek was stressed by his (unsuccessful) involvement in the Ryan Miller investigation

In doing it so it found:

We are satisfied that the factors relied upon by Ms Howell do assist in explaining Mr Gosek’s behaviour. 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. 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.

[56] We are satisfied that the termination was harsh. The consequences for Mr Gosek for this one off event are significant. He lost a secure job and his reputation amongst his fellow workers and Illawarra Coal. Until this incident, Illawarra Coal had valued him sufficiently and appointed him acting supervisor in Mr Pomana’s absence. Illawarra Coal did not have any concerns until this incident that Mr Gosek would not comply with their policies and procedures and, given his appointment as acting supervisor, he had a responsibility for ensuring that others followed those procedures. Mr Gosek had to deal with a range of matters including the death of a family member, depression and physical exhaustion. As well, he abused alcohol with little regard to the potential impact this may have on his mental health. While none of this excuses his behaviour, we are satisfied that it is sufficient to tip the balance in favour of a finding that the dismissal was harsh.

[emphasis added]

The majority ordered that Gosek be reinstated with continuity of employment and continuous service but did not make an order for lost remuneration as a reflection of the seriousness with which they viewed Gosek’s conduct.

In dissent, Deputy President Andersen found Gosek’s conduct was at the higher end of the scale and although the mental illness explained it in part, the alcohol didn’t excuse the behaviour, and while some of the other factors were relevant the punishment didn’t outweigh the crime.

Lessons for employers

  • It is not enough that an employee’s poor conduct / performance is at the ‘sackable’ end of the scale.
  • The context in which conduct occurs is as relevant as the conduct itself.
  • Employees should be given an opportunity to put forward any mitigating circumstances which may explain or justify their conduct, particularly in cases where the conduct is out of character.
  • Records should demonstrate that the employee’s comments have been considered before a decision is made.

If you would like advice or assistance with any disciplinary issues, please contact a member of our Workplace Relations team.