Gosek, Matthew v Illawarra Coal Holdings Pty Limited T/A South 32 - [2017] FWC 4574

[2017] FWC 4574

The attached document replaces the document previously issued with the above code on 3 
November 2017.

To amend the appearance names in paragraph [3] of the decision. 

Stevie Smith 
Associate to Commissioner Riordan 

Dated – 14 November 2017















1

Fair Work Act 
2009 
s.394 - Application for unfair dismissal remedy

Mr Matthew Gosek

v

Illawarra Coal Holdings Pty Limited T/A South32
(U2017/1865)

COMMISSIONER RIORDAN SYDNEY, 3 NOVEMBER 2017

Application for an unfair dismissal remedy.

[1] Mr Matthew Gosek was employed by Illawarra Coal Holdings Pty Ltd (formerly 
owned by BHP but now South32), for more than 11 years as an electrical technician. Mr 
Gosek’s employment was terminated on 31 January 2017.

[2] Mr Gosek is the Lodge President for the Construction, Forestry, Mining and Energy 
Union (CFMEU) at the Dendrobium Mine of Illawarra Coal. 

[3] Leave was granted in accordance with section 596 of the Fair Work Act, 2009 (the
Act) to allow Mr Gosek to be represented by Ms Claire Howell, of Counsel, instructed by Mr 
Phillip Pasfield of Slater & Gordon. Illawarra Coal were represented by Mr Andrew Gotting, 
of Counsel, instructed by Mr Andrew Gray and Ms Angela Weber of King & Wood 
Mallesons. 

Issues 

[4] The relevant issues for consideration and determination in this matter are: 

a) Did Illawarra Coal have valid reason to terminate Mr Gosek?
b) Was Mr Gosek’s termination harsh, unjust or unreasonable? 
c) If Mr Gosek’s termination was harsh, unjust or unreasonable, what is the 

appropriate remedy. 

[5] At my suggestion, it was agreed by the parties that the inappropriate language that was 
prevalent in the facts in this matter would not be repeated but instead identified by the first 
letter of the word used. 

Background 

[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 

[2017] FWC 4574[Note: An appeal pursuant to s.604 (C2017/6113) was 
lodged against this decision - refer to Full Bench decision dated 23 
February 2018 [[2018] FWCFB 749] and Full Bench decision dated 6 
April 2018 [2018] FWCFB 1829 for result of appeal.]

DECISION


E AUSTRALIA FairWork Commission




 

http://www.fwc.gov.au/documents/decisionssigned/html/2018FWCFB1829.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb749.htm


[2017] FWC 4574

2

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. 








[2017] FWC 4574

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[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: 

“Hi Boys

I appreciate some of you responding today telling me I was out of line. The truth is 
you are right. I was out of line and none of you deserve my poor choice of words. We 
are all grown men and I hope you know after working together for some years now 
that it is very unlike me to go off that way. I am probably more angry at myself and 
recent disputes have taken an emotional toll. I have directed this at you at the worst 
time having a few beers and for that I apologise. 
Regards, 
Matt” 1

[18] Ten minutes later, Mr Gosek sent a text message to Mr Pomana saying: 

“Hi Pete, 

I must sincerely apologise if I was abusive towards you yesterday I will be honest 
mate I don’t remember the conversation. 
What I do know is you deserve better from me. I am not travelling well I am currently 
battling 2 issues. One is depression and the other is alcohol abuse. A shit house combo 
let me tell you.”

[19] On 5 October 2016 a number of the group of 7 employees contacted their shift 
Supervisors, Mr Pomana and Mr Peter McLeod, to complain about Mr Gosek’s phone call.

[20] On 6 October 2016 from approximately 7.30am onwards, Mr Gosek rang each 
employee and sincerely apologised for his behaviour and explained some of his personal 
issues that he was experiencing. 

[21] Mr Plavecky, upon hearing of these complaints about Mr Gosek’s behaviour, 
commenced an investigation and asked for the relevant employees to be invited to a meeting
at the start of their next shift on 7 October 2016. Mr Plavecky attended this meeting. 

[22] On 8 October 2016, Mr Plavecky contacted Mr Paul York, a Human Resources 
Officer of South 32 by email as follows: 

“Paul, 

Further to conversation this morning – brief timeline of events below. 

Given the risk of the union mobilizing and pressuring the 6 CFMEU members effected 
to change their story, see moving on the investigation as a priority, with formal 








[2017] FWC 4574

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interviews to commencing tomorrow evening (to be led by person external to site). 
Note one person effected (P Pomana) not a CFMEU member. 

Timeline 

Tue 4th 15:00 I (JP) received call from Matt Gosek (MG) who was irate at a perceived 
biased outcome of RMillar vs MGoedde investigation. Stated that LW crew had lied 
and were not to be trusted. Made accusations around M Goedde (LW Supervisors) 
integrity (prick, bully, a grub, should be pulled in to line otherwise he would do this 
etc). Repeatedly stated that if the investigation was not reviewed to find that Ryan had 
been harassed he would take it to the Regulator. Ended conversation with MG by 
stating that investigation outcome is final, his comments were out of line and were 
documented and would discuss this further in the next 24hrs. He did not sound under 
the influence, though stressed. 

Tues 4th Post 15:30 through 20:00: Phone calls and txt messages made by MG to Craig 
Smith (LW Elec), Tony Wharakura (LW Op), Russ Brown (LW Op), Paul Cross (MC 
Op), Mick Graovac (LW Op), Juan Rodriguez (LW Mech), Pete Pomana (Maint 
Supervisor). 

i) initial text messages contained references to being ‘dogs’. These messages 
were recorded. 

ii) subsequent phone messages contained references to being ‘Dog C*nts’, that 
they had sold out their peer, this was not the end. Some of these message were 
received/overheard by family members. 

iii) All individuals responded by calling Matt and were subjected to a tirade 
from Matt Gosek (up to ½ hr), with allegations made against their integrity, 
work reputation, cultural background, and threats made to track them down 
with further retribution. 2 reported audio recording this conversation. 

iv) A number reported that Matt sounded under the influence. 

v) Multiple phone conversations were overheard by family members, with 
many reporting partners/wives being distressed by the conversations. 

vi) Calls were made to site union representative (A Hersch) to report what had 
happened and to understand what would be done. No further response from the 
Union to date. 

Wed 5th: Matt phoned all of the above and apologised for his actions the previous day. 
Persons affected made calls to shift supervision (P Pomana & P McLeod-UM) to 
report incident and dissatisfaction with what had happened. P Gladden/G Gleeson 
through conversations with P Pomana were made aware of the phone conversations 
and discussed with myself late evening.

Thu 6th: Made phone call to P Mcleod to discuss issues reported. Corroborated what 
PG/GG had advised the previous day. Advised would be at Fri 7th SOS N/S to talk to 








[2017] FWC 4574

5

the persons involved to hear first-hand and progress. Attempted to contact M Gosek 
and left messages (primarily to check in on his mental state). 

Fri 7th: Discussion held with 7 persons contacted by Matt, and P Mcleod (UM)    and 
diary notes taken of conversation of events. Evident some of persons still emotionally 
effected by events, deeply disappointed by what had occurred, and lack of response by 
CFMEU. Some reported concern for potential for being vilified by other CFMEU 
members. Majority willing to report the facts if an investigation occurred. Advised 
based on information collected, it would progress to a formal investigation and would 
pursue this as a priority. 

M Gosek had advised P Pomana on Wednesday requested leave and stated would not 
be in on weekend. He did not present to work on Friday NS. Advised P Mcleod (UM) 
that if he attends work (Sat/Sun) he is to be advised that he is stood down with pay 
pending the investigation and to contact me. 

Talk soon 

Joel Plavecky 
Dendrobium Mine ”2

[23] Mr Gosek applied for, and was granted, 6 weeks leave on 8 October 2016 to enable 
him to deal with his personal issues. 

[24] In relation to the investigation, Mr Plavecky decided to use someone he identified as
an “independent” investigator, Mr Gary Hatfield. Mr Hatfield was a senior HR Business 
Partner from South32, but was not from the Dendrobium mine. Mr Hatfield was assisted by 
Ms Joanne Thew, who is a Human Resources Business Partner at Illawarra Coal. Ms Thew
had never been involved in an investigation of this kind in her 5 years of employment with 
Illawarra Coal. 

[25] On 9 October 2016, the Investigation Team conducted interviews with all but one of 
the employees involved in the incident on 4 October 2016. That final interview was 
undertaken on 11 October 2016. 

[26] An initial draft Investigation Report was completed by Mr Hatfield and Ms Thew on 
11 October 2016. It included the following summary of mitigating factors and matters they 
had taken into account in considering Mr Gosek’s behaviour:

“4.2.4 Mitigating / Other Considerations

 Impacted employees acknowledged this behaviour was out of character for 
Matt Gosek 

 If accepted, Matt is currently under pressure from issues away from work 
 Matt alleged to be under pressure dealing with issues at work, in the main, and 

assumed Matt’s view regarding unsatisfactory outcome of the Ryan Miller 
allegations of workplace bullying and harassment 

 Matt was under the influence of alcohol and there is some evidence of alcohol 
abuse admissions 

 Matt also described “depression” in an apology email to Peter Pomana 








[2017] FWC 4574

6

 At least one employee expressed the view that he would not want to see Matt lose 
his job over this, although the same employee expressed a view that Matt should not 
continue in his role of Lodge President. 

 Matt has expressed deep regret and apology for his actions. 
 Matt has accepted responsibility for his actions and does not deny that the events 

occurred. However, in his phone call to Gary Hatfield and Joanne Thew he 
expressed a view that there is nothing more to be done and that he is “not worried 
about it”. 

 The events occurred in connection with work but outside of the workplace. This was 
the view raised by the CFMEU in the initial phone call to Lee Webb. 

 Matt has been with the Company for just short of 11 years. 
 Matt regularly steps up into a Supervisory role to cover for Peter Pomana when 

he is on leave. Matt has participated in Code of Business Conduct training 
numerous times. 

 The language, particularly the use of the word “dog”, the “ranting”, loud and abusive 
manner of the phone calls is at the upper end of unacceptable conduct by our 
employees. 

 In some cases the incidents almost resulted in physical violence as a result of the 
phone calls 

 Doing nothing would be a slap in the face to the employees who have come forward 
to report the incident. 

4.3 Recommendations 

Doing nothing is not an option. 

The mitigating factors listed above demonstrate that this is out of character for 
Matt and that it appears he is experiencing considerable personal difficulties at 
the moment – both at work and at home. Matt has shown remorse over the 
incidents that occurred and accepts he was out of line. Whilst this is no excuse for 
anyone to behave in such a manner it is an isolated event, albeit one that has had 
a considerable flow on effect to the families of those involved. 

Serious consideration could be given to termination of employment. Similarly, 
consideration could be given to transferring Matt to Appin. 

On balance, however, we prefer the following: 

i) Move Matt to another shift – for Matt to remain on Weekend Night Shift 
when he has demonstrated unacceptable behaviour to a group of his fellow 
employees has the potential to make the working environment untenable. To 
keep him on the shift sends a message to those who reported the incident, and 
in many cases felt very uncomfortable doing so, that his unacceptable 
behaviour is tolerated by the Company. 

ii) Matt’s role as the CFMEU Lodge President is also untenable. Of course this is 
not a decision the Company has control over. However, the Company, if 
necessary, could bring this outcome about by terminating Matt’s services or 
transferring him to Appin. 








[2017] FWC 4574

7

iii) Final written warning – no time limitation to be associated with this.”3

(my emphasis)

[27] Mr Gosek attended an interview with the Investigation Team on 18 November 2016. 
Mr Gosek was supported by Mr Bob Timbs, an Official of the CFMEU. Mr Gosek and Mr 
Timbs advised Illawarra Coal that if they had any further questions of Mr Gosek then they 
would need to put them in writing. 

[28] A list of questions was sent to Mr Gosek on 21 November 2016. Mr Gosek responded 
on 25 November 2016. Mr Gosek received support and advice from the CFMEU in compiling 
his responses. 

[29] An amended version of the investigation report was provided to Mr Plavecky on 20 
November 2016. Surprisingly, this copy of the report left blank the previously completed
section 4.3 Recommendation. Ms Thew was unable to provide any explanation as to why the 
recommendation of the initial report had been removed or who had physically removed the 
recommendations from the report.4

[30] It is not in dispute that Mr Plavecky was the ultimate decision maker, subject to review 
by the Vice President of Operations for South32, Mr Michael Thew. It is also not in dispute 
that Mr Plavecky wrote the Recommendation at section 4.3 of the Hatfield/Thew 
Investigation Report. Put simply, Mr Plavecky made a recommendation to himself which he 
then, unsurprisingly, accepted. 

“Investigation Report 
Wednesday, 7 December 2016

4.3 Recommendations

Allegations: I accept the “proven” status of the allegations following review of this 
investigation and supporting documents. 

Culpability: Referring to the Just Culture Decision Tree (ICHGD0002), the outcomes 
are: intended Act (yes), Consequences Intended (yes) leading to a high level of 
personal culpability. The behaviour of M Gosek is considered serious and willful. 

Behaviour Classification: Referring to the Just Culture Decision Tree (ICHGD0002), 
in conjunction with the culpability finding, requires and elevated level of disciplinary 
action. Referring to ICHP0150 Behavioural Improvement Process, would firmly 
position the encountered behaviours of M Gosek into Category 3 both on behaviour 
description, and correlation with examples provided (i.e. threatening or abusive 
behaviour, antisocial or inappropriate behaviour, serious harassment or discriminatory 
behaviour, serious breach of code of business conduct). 

Mitigating Circumstances: I recognise and have considered the mitigating/other 
circumstances provided in 4.2.4 above. 

M Gosek has expressed through various channels (refer supporting documentation) 
personal issues may have influenced his behaviours on 4th October 2016. 
Substantiation of these issues will be required and include evidence regarding the 








[2017] FWC 4574

8

nature and extent of these personal issues, for it to be considered further as mitigating 
circumstances. This should be requested of M Gosek and considered prior to making 
my final recommendation. 

Initial Recommendation: Issue M Gosek with a show cause for termination letter 
(Category 3 Behaviour – Show Cause) based on the proven nature of the allegations, 
and the serious and willful behaviour displayed by M Gosek. This initial 
recommendation has taken into account current substantiated mitigating circumstances 
in 4.2.4. 

The letter should summarise the proven allegations, and Just Culture process 
undertaken. Substantiation by M Gosek of expressed personal issues, which may 
further provide mitigating circumstances is also requested as part of this show cause. 

Joel Plavecky 
Operations Manager, Dendrobium Mine”5

[31] Mr Gosek was required to show cause why his employment should not be terminated 
on 8 December 2016. 

“8 December 2016

Matthew Gosek 
Delivered by hand 

Dear Matthew 

An investigation has now been completed regarding allegations which were made 
against you with respect to your conduct. These allegations were provided to you in 
writing on 10 October 2016 (Notice of Investigation) and following a period of 
approved annual leave, you were provided with an opportunity to respond on 18 
November 2016 in a discussion with Joanne Thew (HR Business Partner), Gary 
Hatfield (HR Business Partner) and Bob Timbs. Subsequent to this meeting, you were 
provided with the opportunity to respond in writing (letter to you, dated 21 November 
2016) which you supplied to the Company on 25 November 2016.

Having considered the information obtained during the investigation, the Company 
has concluded the following preliminary findings with respect to your conduct: 

 On Tuesday, 4 October 2016 you initiated and participated in abusive, intimidatory 
and derogatory phone calls and texts to 7 fellow CFMEU members and your Shift 
Maintenance Supervisor. 

 The text message you initiated to the impacted employees stated the word “Dog” and 
in the subsequent phone conversations you referred to them as “dog c****” and 
“f***ing dogs”. 

 Also in the subsequent phone conversations to fellow CFMEU Lodge members, you 
made a variety of intimidatory threats for example: about their ongoing involvement 








[2017] FWC 4574

9

and support with the union; being involved in court cases; other Lodge members will 
know what they had done; and ongoing employment. 

 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. 

 Those employees, and in some cases their families, viewed your conduct as 
offensive, intimidating or unwelcome. 

In coming to the preliminary consideration of consequences, the Company has been 
guided by the Just Culture Decision Tree (ICHGD0002) and then the Behavioural 
Improvement Process (ICHP0150). Further, the Company has considered all the 
mitigating factors that it is aware of. 

In light of the above findings and process, the Company has concluded that you have 
behaved in a manner towards other employees which is consistent with harassment 
and as such you have breached your contract of employment, South32 Values and the 
Code of Business Conduct. As a result of these findings the Company is now 
considering terminating your employment. 

Show Cause Request 

Prior to making a decision, the Company will provide you with a final opportunity to 
show cause as to why your employment should not be terminated. In this regard, we 
request that you provide a written response containing any such information to myself 
at joel.plavecky@south32.net by 12 noon (AEDT) on Tuesday 13 December 2016.
In particular, you have advised the Company of personal issues which impacted your 
behaviour on 4th October 2016. You have also advised yo have “evidence that firmly 
supports” such impact. Substantiation of these issues will be required (and include 
such evidence) regarding the nature and extent of these personal issues, for them 
to be considered further as mitigating circumstances.

Once a final decision has been made, a further meeting will be arranged to advise you 
of the outcome of the investigation. During this time you will continue to be paid as 
per normal; however you will not be required to attend work. Please note that you are 
expected to remain fit for work on rostered working days. 

Access to Illawarra Coal’s Employee Assistance Program 

I would also like to remind you that the Company can provide you with any further 
support via our Employee Assistance Program, should you wish to utilise it. As you 
are aware, this is a free, confidential, short term counselling service which can be 
contacted on 1300 727 308.

If you have any questions regarding this correspondence, please feel free to contact me 
on 0424 465 ***. 

Yours sincerely 
Joel Plavecky”6

(my emphasis) 






mailto:joel.plavecky@south32.net


[2017] FWC 4574

10

[32] Mr Gosek provided his Show Cause response on 13 December 2016. Mr Gosek 
requested a face to face meeting with the Investigations Team to discuss and provide evidence 
in relation to his personal issues. 

[33] On 20 December 2016, Mr Hatfield sent the following email to Mr Plavecky: 

“Hi Joel, 

Meeting on Monday might best be described as a lot of important mitigations 
that we would have been better to know of much sooner. Matt supplied two forms 
of medical evidence in support of his advice that he was suffering from severe 
depression. The advice also confirmed he was taking quite strong medication and that 
it is well known the impacts that this could have on short term memory, behaviour etc. 
Adding alcohol to this mix only makes things worse. 

But so that the process if as robust as it can be what now needs to happen is that 
after we get any reply to the attached I will update the full report (without 
recommendations) and resend that to you. It would be best if you read the entire 
report again and then consider your initial recommendation based on the new material.  
I have explained to Mick Thew this will add more paid at home time and whilst none 
of us are comfortable with that, getting the bet outcome is more important. Depending 
on e-mail and your availability we might still get it done the week after Christmas but 
we will see. We explained all that to Matt and his support person (Ian Drain). 

Not the outcome we perhaps anticipated but life with people is often complicated. 
Have a wonderful Christmas but feel free to call me if you want to discuss in more 
detail. 

Kind regards
Gary Hatfield” 
(my emphasis)

[34] A further meeting between Mr Gosek and the Investigations Team took place on 3 
January 2017. Mr Hatfield sent a summary of the meeting by email to Mr Plavecky, who was 
overseas at the time: 

“…As you know Jo and I were to meet with Matt Gosek today in response to his 
request for this meeting as part of his Show Cause response. The below is not intended 
to be a full summary nor sequentially perfect account of what was spoken of but rather 
a summary: 

…Ryan Miller situation was creating stress for me and still is, and that he was “under 
a lot of stress, heavy medication and started drinking”. 
He presented the attached medical certificate from his family doctor (Dr Cameron) 
and explained that Dr Cameron was also his dad’s Doctor and his own doctor for 
“decades”. He also presented the Mental Health Care Plan (also attached) which he 
explained was created following referral by Dr Cameron to the Illawarra Area Health 
Service. You will see that the diagnosis is on of “major depression since 23/7/16” and 
that the Mental Health Care plan speaks “History of depression”, “work related stress” 
and “Cymbalta 60mg – 2 daily”. 








[2017] FWC 4574

11

Some of the symptoms he described to us included: “short term memory loss” (he 
referred to that as the reason he rang you the next day as he was unclear / unsure of 
what he might have said); “I did not mean to call them but thought processes not there 
at time”; “I thought I had an issue with excess alcohol consumption”; now know drugs 
don’t work as they should when alcohol is taken”; and “not had a drink since and now 
medication is doing its job so I am feeling better”. He said he was “truly sorry” and in 
his mind at least, “to a man [the men impacted] they were understanding and accepted 
my apology”, “worst thing is how I spoke to these guys”. “I can’t undo it” “realise my 
action were wrong”. 
He also said that He was and still obviously upset with them and “in my opinion they 
did lie”. In both Jo and my opinion there was a shift in the approach from Matt in this 
meeting but still an unusual air of detachment. Matt did say one of the things he is 
having to change is that he knows he has to talk about this issue but it is not his nature 
to do that. 
He also spoke of letting his Dad down in being unable to work for him the next day
and you will note in the Health Plan the notes refer to “and works for himself part 
time”. The Health Plan notes this, his job with us and family responsibilities in the 
social history section but does not then include his employee representative roles and 
impacts. 

What is Cymbalta?

Cymbalta is used to treat major depressive disorder in adults. 

Side Effects of Cymbalta

Psychiatric 

Antidepressants may have a role in inducing worsening of depression and the 
emergence of suicidality in certain patients during eh early phases of treatment. An 
increased risk of suicidal thinking and behaviour in children, adolescents, and young 
adults (aged 18 to 24 years) with major depressive disorder (MDD) and other 
psychiatric disorders has been reported with short-term use of antidepressant drugs. 

Adult and paediatric patients receiving antidepressants for MDD, as well as for 
psychiatric and no psychiatric indications, have reported symptoms that may be 
precursors to emerging suicidality, including anxiety, agitation, panic attacks, 
insomnia, irritability, hostility, aggressiveness, impulsivity, akathisia, hypomania, and 
mania. Causality has not been established. 

Aggression and anger have been reported particularly early in treatment or after 
treatment discontinuation. 

Very common (10% or more): Insomnia 
Common (1% to 10%): Abnormal dreams, agitation, anxiety, sleep disorder
Uncommon (0.1% to 1%): Apathy, bruxism, disorientation/confusional state, 
irritability, mood swings, nervousness, poor quality sleep, suicide attempt 
Rare (less than 0.1%): Aggression and anger, completed suicide, hallucinations, 
mania, suicidal behaviour and ideation.








[2017] FWC 4574

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Kind regards
Gary Hatfield 
HR Business Partner”7

[35] I note that a final draft of the Investigation Report was never compiled by Mr Hatfield. 

[36] When conducting the peer review, Mr Thew was provided with a copy of the Report 
which did not contain all of the mitigating circumstances that had been supplied by Mr Gosek 
which had subsequently been accepted by the Investigations Team.

[37] Mr Gosek was terminated, with payment in lieu of notice, on 31 January 2017. 

“31 January 2017 

Dear Matthew 

Outcome of Investigation 

I refer to the letters which were provided to you on 10 October 2016 (Notice of 
Investigation), and 8 and 19 December 2016 (Show Cause) in regards to an 
investigation in to allegations of inappropriate conduct which have been made against 
you. 

Having considered all of the information gathered, including the points you have 
raised in your Show Cause response(s), the Company has determined that the 
following has been found to be true with respect to your conduct: 

 On Tuesday 4 October 2016 you initiated and participated in abusive, intimidatory 
and derogatory phone calls and texts to 7 fellow Employees and your Shift 
Maintenance Supervisor; 

 The text message you initiated to the impacted Employees stated words to the effect 
of ‘dog cun*ts and f****ing dogs’; 

 Also in the subsequent phone conversations to those Employees, you made a variety 
of intimidatory threats for example making statements regarding their ongoing 
involvement and support with the unions; being involved in court cases; other Lodge 
members will know what they had done; and their ongoing employment.

 These activities extended over a period of between 4 to 5 hours, commencing from 
around 3pm. Calls carried in length from a couple of minutes up to 48 minutes; and 

 Those employees, and in some cases their families, viewed your conduct as 
offensive, intimidating an unwelcome. 

As a result of these findings, your conduct and behaviour is viewed as intimidating 
and consistent with harassment, and as a result is a breach of Our Values, Code of 
Business Conduct and your Employment Contract and that it is appropriate in the 
circumstances that your employment be terminated. Accordingly, your employment 
will be terminated effective as of today’s date with payment in lieu of notice. Any 
accrued but untaken leave will be paid to you as of today’s date. 

Access to Illawarra Coal’s Employee Assistance Program 








[2017] FWC 4574

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I would also like to remind you that the Company can provide you with any further 
support via our Employee Assistance Program, should you wish to utilise. As you are 
aware, this is a free, confidential, short term counselling service which can be 
contacted on 1300 727 308. 

If you have any questions regarding this correspondence, please contact myself on 
0424 *** ***. 

Sincerely 
Joel Plavecky”8

[38] The relevant sections of the Act for an unfair dismissal proceedings include; 

381 Object of this Part

(1)  The object of this Part is:

(a)  to establish a framework for dealing with unfair dismissal that balances:
(i)  the needs of business (including small business); and

(ii)  the needs of employees; and

(b)  to establish procedures for dealing with unfair dismissal that:

(i)  are quick, flexible and informal; and

(ii)  address the needs of employers and employees; and

(c)  to provide remedies if a dismissal is found to be unfair, with an emphasis on 
reinstatement

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the 
manner of deciding on and working out such remedies, are intended to ensure that a 
"fair go all round" is accorded to both the employer and employee concerned.

382  When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a)  the person is an employee who has completed a period of employment with his or 
her employer of at least the minimum employment period; and

(b)  one or more of the following apply:

(i)  a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;








[2017] FWC 4574

14

(iii)  the sum of the person’s annual rate of earnings, and such other amounts (if 
any) worked out in relation to the person in accordance with the regulations, is 
less than the high income threshold.

385  What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a)  the person has been dismissed; and

(b)  the dismissal was harsh, unjust or unreasonable; and

(c)  the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d)  the dismissal was not a case of genuine redundancy.

387  Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or 
unreasonable, FWA must take into account:

(a)  whether there was a valid reason for the dismissal related to the person’s capacity 
or conduct (including its effect on the safety and welfare of other employees); and

(b)  whether the person was notified of that reason; and

(c)  whether the person was given an opportunity to respond to any reason related to 
the capacity or conduct of the person; and

(d)  any unreasonable refusal by the employer to allow the person to have a support 
person present to assist at any discussions relating to dismissal; and

(e)  if the dismissal related to unsatisfactory performance by the person—whether the 
person had been warned about that unsatisfactory performance before the dismissal; 
and

(f)  the degree to which the size of the employer’s enterprise would be likely to impact 
on the procedures followed in effecting the dismissal; and

(g)  the degree to which the absence of dedicated human resource management 
specialists or expertise in the enterprise would be likely to impact on the procedures 
followed in effecting the dismissal; and

(h)  any other matters that FWC considers relevant.

Outline of Submissions

[39] On behalf of Mr Gosek, Ms Howell submitted that: 

a) Illawarra Coal did not have a valid reason to terminate his employment. 








[2017] FWC 4574

15

b) If Illawarra Coal did have a valid reason, that the termination was harsh, unjust and 
unreasonable due to mitigating circumstances. 

c) The investigation process that was undertaken by Illawarra Coal was flawed and 
confused on the basis that the original recommendation of the Investigation Team 
was removed from the report by an unidentified person and eventually replaced by 
a recommendation that Mr Plavecky made to himself.

d) A final report was never produced. The peer review of Mr Plavecky’s decision 
undertaken by Vice President Thew was undertaken on an incomplete report on the 
basis that the Report did not contain all of the mitigating factors associated with 
Mr Gosek’s health. Further, the contents of Mr Hatfield’s email of 3 January 2017 
should have been included in the report. 

e) Mr Gosek was under the influence of alcohol at the time of the incident. Early the 
next morning, without prompting, Mr Gosek apologised to all of the 8 individuals 
by text. This text was followed up by direct and individual phone calls where Mr 
Gosek showed remorse and profusely apologised. 

f) Mr Gosek was suffering from major depression since mid 2016, was under the care 
of a medical specialist, was working through a mental health care plan and was 
taking heavy medication.

g) Mr Gosek admitted to having a drinking problem, the seriousness of which became 
heightened when mixed with his anti depressant medication. 

h) Mr Gosek was subjected to different treatment when compared to what has 
occurred with other employees of Illawarra Coal. Mr Plavecky acted immediately 
to set up a formal investigation, even though no formal complaint had been made 
by any of the 7 employees. Mr Plavecky initiated meetings with the affected 
employees upon their return to work on 7 October 2016. 

i) On 8 October 2016 Mr Plavecky stated to Ms Hungerford that there was enough
evidence to proceed to a formal investigation and that was (his) intent. On the same 
day, Mr Plavecky also stated to Mr York that “given the risk of union mobilising and 
pressuring the 6 CFMEU member effected (sic) to change their story, see moving on 
the investigation as a priority, with formal interviews to commence tomorrow 
evening…Not one person effected (sic) not a union member.” 

j) The urgency shown by Mr Plavecky in instituting a formal investigation was in 
striking contrast to the manner in which he dealt with the complaints made against Mr 
Goedde.

k) Mr Gosek’s conduct occurred outside of work and involved Mr Gosek using 
language that was commonly used at the worksite whereas Mr Goedde’s conduct 
occurred at work where he identified an employee as a liar and belittled him in front of 
his work colleagues.








[2017] FWC 4574

16

l) Further, this double standard shows a pre-disposition and intent on the part of Mr 
Plavecky to dismiss Mr Gosek from the outset. 

m) Mr Plavecky applied the “Illawarra Coal Just Culture Tree” in a perverse manner in 
order to compare Mr Gosek’s conduct with sabotage and malevolent damage. 

n) Illawarra Coal’s case is based around hearsay statements of the 7 employees, none 
of whom were summonsed to give evidence by Illawarra Coal. Only Mr Pomana gave 
evidence in the proceedings. 

o) only 1 of the 7 employees was still upset with Mr Gosek by 9 October 2017 and that 
this remaining employee sought out Mr Gosek at a union meeting in January to shake 
his hand and enquire about his wellbeing. 

p) Illawarra Coal has exaggerated and overstated the reactions of the 8 employees in a 
self-serving manner. 

q) the only experienced person in the investigation process, Mr Hatfield, was not 
called by Illawarra Coal and that the FWC should draw a negative inference of his 
nonattendance in accordance with the principles in Jones v Dunkel9. 

[40] On behalf of Illawarra Coal, Mr Gotting submitted that: 

a) i: Mr Gosek offended various employees by using foul and abusive language – eg 
Dog, Dog C***, F***ing Dog

ii: Mr Gosek offended employees by alleging they had not supported Mr Miller, that 
they were lying about it and that as members of the Dendrobium Lodge they should 
have supported Mr Miller. 

iii: Mr Gosek made a variety of intimidatory comments, for example, “I will remove 
you from the Lodge, I will kick you off the shift, I take it personally and will hunt you 
down, you won’t be able to lie in court, I will tell everyone what you have done, how 
about we go to the Oaks to sort it out, you should quit your job”. 

iv: Mr Gosek’s phone calls were long, very abusive, loud and rambling at times. They 
were heard by family members who were caused distress, for example, on employee 
claimed “Son taped conversation… he thought I was getting sacked”, another 
employees wife received the initial voicemail saying “Juan – I heard you are a dog”, 
another employees wife answered the call the next day and spoke her mind, “this has 
been a big disruption for us”, another employee claimed that the call “didn’t make me 
feel good. I’m on anxiety medication so I was panicking as I thought it was directed at 
me”, “after the call I was so worked up I had an argument with my son”, “my wife 
heard the call and it upset her” and “felt like it was someone in authority culling me”.  

v: the CFMEU lodge members expressed concerns of the risk of further retribution, for 
example, vilification as a result of participation in this investigation. During the 
investigation an event form was completed reporting that the words “Dog C****” was 
discovered on a piece of equipment regularly used by one of the impacted employees –








[2017] FWC 4574

17

a brief investigation was undertaken, however, the impacted employee did not want to 
pursue the matter any further. 

b) Mr Gosek’s conduct was in breach of the South32 Code of Business Conduct
Values at Work. Relevantly, the Code of Conduct states: 

“Harassment is an action, conduct or behaviour that is viewed as unwelcome, 
humiliating, intimidating or offensive by the recipient… South32 does not 
tolerate any form of harassment or bullying in any of our workplaces. Our 
values support a culture where we treat people fairly, respectfully and with 
dignity.” 

c) Mr Gosek had breached his contract of employment by undermining the 
employment relationship that Mr Gosek had with his supervisor and colleagues. Mr 
Gosek’s contract of employment states: 

“2. Termination of Employment 

2.1 Your employment may be terminated by Dendrobium or by you giving 
four week’s notice in writing or by the payment of forfeiture of four week’s 
Salary, as the case may be. Additional notice may be required by law. 

2.2 Dendrobium Coal may request that you not attend for work for all or 
part of your notice period. 

2.3 Dendrobium may terminate your employment without notice for 
serious misconduct in which case your base salary will be paid up to the time 
of dismissal only. No other payments will apply. 

2.4 You authorise Dendrobium Coal to deduct any amounts owed to you to 
Denrobium Coal from any payments to be made to you upon terminated of 
employment. 

3. Policies and Procedures 

3.1 Dendrobium’s policies and procedures as in effect from time to time 
apply to your employment. These policies and procedures may be varied from 
time to time however they do not form party of this Agreement. 

3.2  You are obliged to adhere to these policies and procedures and to 
cooperate to maximum extent possible in their implementation and application. 
A failure to adhere to company policies and procedures may result in 
disciplinary action up to and including termination of employment.”10

d) Illawarra Coal had a valid reason to terminate Mr Gosek on the basis that its 
decision was sound, defensible and well founded. 

e) Mr Gosek had failed to take responsibility for his abusive and threatening conduct. 
The fact that Mr Gosek apologised does not abrogate his actions or repair the damage
to the employment relationship. 








[2017] FWC 4574

18

f) Mr Gosek’s actions have resulted in the loss of the necessary trust and confidence of 
Mr Gosek by Illawarra Coal. 

g) Although the conduct occurred whilst Mr Gosek was not at work, the subject matter 
of the text message and the telephone calls was the outcome of the investigation into 
the bullying and harassment claim of Mr Miller. As a result, there is a sufficient nexus 
between the workplace and the abusive conduct for Illawarra Coal to conduct an 
investigation. 

h) Mr Gosek’s conduct was intended to be offensive, a fact admitted by Mr Gosek,
who stated that he wanted the men to know that he was upset that they did not support 
Mr Miller during the enquiry. 

i) Whilst Mr Gosek has a favourable employment history, such a record does not 
excuse the harassment of his colleagues on 4 October 2016.

j) As a result of Mr Gosek’s conduct, Illawarra Coal is not confident that, faced with a 
similar situation at work where Mr Gosek may not like the considered outcome of an 
investigation or enquiry, Mr Gosek may repeat his abusive and threatening behaviour. 

k) The fact that colourful language may be prevalent in the mining industry, does not 
excuse the use of such language when it is used in such a direct and personal manner. 
Further, Mr Gosek accepted that his language was abusive, unnecessary, inappropriate 
and poor. 

l) Illawarra Coal conducted a very thorough investigation, allowed Mr Gosek 
numerous opportunities to respond, carefully considered all of Mr Gosek’s responses 
and finally determined that Mr Gosek lacked contrition for his conduct and that Mr 
Gosek’s mitigating circumstances did not reduce his culpability to a point where 
dismissal was not the appropriate outcome. 

m) Illawarra Coal formed the view that the conduct of Mr Gosek created a clear and 
obvious risk to the health and safety of other employees. 
n) Illawarra Coal had satisfied all of the requirements of section 387 and that Mr 
Gosek’s application should be dismissed. 

[41] In response, Ms Howell submitted: 

a) The Commission should give little or no weight to the hearsay evidence that has 
been provided in relation to the 7 employees who were not called to give evidence by 
Illawarra Coal. Ms Howell suggested that the Commission should conclude that their 
evidence would not have assisted Illawarra Coal’s case. 

b) There is real danger in only relying on the content and sentiment in written 
statements. For example, Mr Pomana indicated in his statement that he was tempted to 
leave the mining industry and that he did not want to supervise Mr Gosek again. Under 
cross examination his position has changed dramatically to the point that if Mr Gosek 
was reinstated to his shift that he would “just deal with it.” 








[2017] FWC 4574

19

c) The language used by Mr Gosek (which Mr Wood describes as being “horrific”) is 
commonly used in the mine and ameliorates the seriousness of the conduct. 

d) There was no formal or written complaint from any of the 8 employees against Mr 
Gosek. 

e) Illawarra Coal did not follow its own policy in relation to bullying and harassment –
identifying a lack of concern for the 8 employees but highlighting the real focus of the 
investigation – ie to dismiss Mr Gosek. 

f) The failure by Illawarra Coal to follow the Grievance Policy significantly limited 
the remedial options available for Mr Gosek. 

g) The lack of direct evidence from the other 7 employees raises serious doubt as to 
whether any or all of these employees accepted the apologies from Mr Gosek, which 
has been relied upon by Illawarra Coal to justify the immediate formal investigation. 

h) There was unchallenged evidence from Mr Hackett that the 7 employees were over 
the incident in November 2016 and that they did not want Mr Gosek to lose his job. 

i) The proposition that Mr Gosek has not taken responsibility for his actions is simply 
inaccurate. Further, that it is difficult to know what else Mr Gosek could have done to 
accept responsibility. Mr Gosek sent text messages and made phone calls to his 8 
colleagues where he profusely apologised. Mr Gosek even apologised to an aggregate 
meeting of members at the Mine. 

j) Illawarra Coal’s assertion that Mr Gosek will repeat this behaviour is implausible,
speculative and self-serving on the basis that it is uncontested that Mr Gosek’s 
behaviour was completely out of character and Mr Gosek’s genuine remorse. 

k) The characterisation of Mr Gosek’s conduct as “wilful” is unfair and inaccurate. 

l) The investigation process was manifestly unfair due to Mr Plavecky providing his 
own recommendation to himself as to the outcome of the investigation rather than 
following the Illawarra Coal investigation template where the people who actually 
conduct the investigation complete the recommendation section of the report.

m) The Commission should reject Illawarra Coal’s submissions in relation to the 
absence of medical evidence. Mr Gosek identified the alcohol and medication cocktail 
as early as 6 October 2016. The Investigation Team accepted that the combination of 
depression, medication and alcohol were relevant mitigating factors in relation to Mr 
Gosek’s conduct. 

Consideration 

[42] Neither party raised any issue in relation to the Commission’s jurisdiction to determine
Mr Gosek’s application. 








[2017] FWC 4574

20

[43] The boundaries of the conduct which falls within the phrase of “harsh, unjust or 
unreasonable” was explained by McHugh and Gummow JJ in Byrne v Australian Airlines11

where they said: 

“128. It may be that the termination is harsh but not unjust or unreasonable, unjust but 
not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the 
concepts will overlap. Thus, the one termination of employment may be unjust 
because the employee was not guilty of the misconduct on which the employer acted, 
may be unreasonable because it was decided upon inferences which could not 
reasonably have been drawn from the material before the employer, and may be harsh 
in its consequences for the personal and economic situation of the employee or 
because it is disproportionate to the gravity of the misconduct in respect of which the 
employer acted.”

[44] In Australia Meat Holdings a Full Bench of the AIRC held, when referring to the 
extract from Byrne: 

“The above extract is authority for the proposition that a termination of employment 
may be: 

 unjust, because the employee was not guilty of the misconduct on which the 
employer acted;

 unreasonable, because it was decided on inferences which could not 
reasonably have been drawn from the material before the employer; and/or 

 harsh, because of its consequences for the personal and economic situation of 
the employee or because it is disproportionate to the gravity of the 
misconduct.”12

[45] I now turn to my consideration of each of the criteria identified in section 387 (see 
above). 

Section 387(a) valid reason 

[46] In Selvachandran v Peterson Plastics Pty Ltd13 it was held: 

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of 
sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or 
prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same 
time the reasons must be valid in the context of the employee’s capacity or conduct or 
based upon the operational requirements of the employer’s business. Further, in 
considering whether a reason is valid, it must be remembered that the requirement 
applies in the practical sphere of the relationship between an employer and an 
employee where each has rights and privileges and duties and obligations conferred 
and imposed on them. The provisions must ‘be applied in a practical, common sense 
way to ensure that the employer and employee are treated fairly.”

[47] It is necessary to carefully consider each of the issues identified by Illawarra Coal in 
the termination letter of 31 January 2017 to ascertain whether the decision to terminate Mr 
Gosek was “sound, defensible and well founded.” 








[2017] FWC 4574

21

[48] Allegation 1: On Tuesday, 4 October 2016 you initiated and participated in abusive, 
intimidatory and derogatory phone calls and texts to 7 fellow CFMEU members and your 
Shift Maintenance Supervisor. 

[49] Mr Gosek initiated the text to his 7 colleagues. These 7 CFMEU members then called, 
or attempted to call, Mr Gosek. It is uncontested that Mr Gosek initiated the call to Mr 
Pomana. It is uncontested that Mr Gosek used inappropriate language with his 7 colleagues 
and that the conversation with Mr Pomana was unwelcome and challenging. I have taken this 
into account. 

[50] Allegation 2: The text message you initiated to the impacted employees stated the 
word “Dog” and in the subsequent phone conversations you referred to them as “dog c****” 
and “f***ing dogs”. 

[51] I have considered the recent Federal Court decision of Barker J in ABCC v Upton14, 
where he said: 

“128. Whilst it might be said that on some occasions bad language, including what 
might be described as unnecessarily bad language – as in this case – might be given 
some tolerance in a workplace…”

[52] In that case, a CFMEU Organiser had described a group of employees who had 
recently resigned from the Union as “f***ing dog c****”. 

[53] There was uncontested evidence that this type of language is commonly used in the 
mine. This is not a startling revelation15. However, I note that Ms Thew acknowledged that 
she was unaware of any employee who had been disciplined over the last 5 years for using 
foul or inappropriate language, even though it is a breach of Illawarra Coal’s Code of 
Business Conduct16. I note that Mr Gosek, upon reflection, accepted that his language was 
inappropriate and unnecessary.

[54] I agree with Ms Thew’s evidence when she said: 

“PN1088

Ms Howell: Again can I suggest to you that if language such as that is used by 
workers to address each other commonly down the mine, then that would be 
highly relevant to assessing the gravity of Mr Gosek's conduct. Do you agree 
with that or not?

Ms Thew: I think it should be taken into account.”17

[55] I have taken into account the fact that this type of language was commonly used in the 
mine, that there is no evidence that any employee has been disciplined for the use of this type 
of language in the past and that Mr Gosek accepted that his language was inappropriate and 
unnecessary.

[56] Mr Gosek acknowledged that this use of the term “dog” was intended to be 
derogatory. I accept that Mr Gosek’s use of the term was meant to convey to his colleagues 
his disappointment, as Lodge President, in their perceived participation in the Goedde








[2017] FWC 4574

22

Investigation. Mr Gosek was of the view that these members had not upheld the union’s
principles and that they had lied to Mr Wood about the incident between Mr Goedde and Mr 
Miller.

[57] I have taken the derogatory language used by Mr Gosek and his criticism of these 
employees into account. 

[58] Allegation 3: Also in the subsequent phone conversations to fellow CFMEU Lodge 
members, you made a variety of intimidatory threats for example: about their ongoing 
involvement and support with the union; being involved in court cases; other Lodge members 
will know what they had done; and ongoing employment. 

[59] Mr Plavecky was concerned that the 7 individuals might be threatened and victimised 
down the track by the CFMEU and its members. He was concerned that these employees were 
going to be labelled as dogs and liars and that Mr Gosek would carry through with his threats 
and kick them out of the Lodge, withdraw the Union’s support for each individual and even 
try to get them terminated. 

[60] Having heard and considered the evidence, I have concluded that Mr Plavecky has 
overreacted to Mr Gosek’s threats and that he made his decision based on his uninformed 
conclusions regarding the internal workings of the CFMEU.

“PN2081

THE COMMISSIONER: What happens if the union - what happens at 
(indistinct)? How is that any of your business?---Mr Plavecky: To me it's a concern 
that if those individuals are put out as liars or whatever the perception was that Matt 
had, then there'd be recrimination against them.”18

“PN2087
THE COMMISSIONER: So, the issue that there may have been an internal union 
process through the lodge caused you some concern?---Mr Plavecky: Absolutely, they 
were going to - they were going to be identified as something”19

[61] In accordance with section 590(2) of the Act, I have read the Rules of the CFMEU 
Mining and Energy Division. This research supports Mr Gosek’s evidence that he has no 
power or authority as Lodge President to expel any member from the Lodge or even withdraw 
Union support for any member. There is absolutely no capacity in Mr Gosek, as Lodge 
President, to terminate any employee from the Dendrobium Mine or from Illawarra Coal. The 
CFMEU does not have “preference of employment” status at the mine, nor is it compulsory 
for all employees to be a member of a union. Mr Gosek also has no capacity to remove an 
employee from a shift.

[62] Mr Plavecky’s assumption that Mr Gosek had this authority and his reliance on that 
assumption, affects the basis on which Mr Plavecky formed his conclusions regarding Mr 
Gosek’s conduct.

[63] I have taken into account the inappropriate threats made by Mr Gosek. I have taken 
into account that these threats were unwelcomed by the employees and therefore a breach of 
the South32 Code of Business Conduct. 








[2017] FWC 4574

23

[64] I have also into taken into account the fact that Mr Gosek was powerless to implement
those threats that involved their entitlements as union members. I have taken into account the 
weight given to those matters by Mr Plavecky.

[65] In Rose v Telstra Corporation Limited20, Vice President Ross (as he then was) said: 

“It is clear that in certain circumstances an employee's employment may be validly 
terminated because of out of hours conduct. But such circumstances are limited,:

* the conduct must be such that, viewed objectively, it is likely to cause serious 
damage to the relationship between the employer and employee; or

* the conduct damages the employer's interests; or

* the conduct is incompatible with the employee's duty as an employee.
In essence the conduct complained of must be of such gravity or importance as to 
indicate a rejection or repudiation of the employment contract by the employee.[30]21

Absent such considerations an employer has no right to control or regulate an
employee's out of hours conduct. In this regard I agree with the following observation 
of Finn J in McManus v Scott-Charlton:

“I am mindful of the caution that should be exercised when any extension is 
made to the supervision allowed an employer over the private activities of an 
employee. It needs to be carefully contained and fully justified.”22

[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 








[2017] FWC 4574

24

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.

Section 387(b) person notified of reason 

[74] I am satisfied that Mr Gosek was notified of the reason for the investigation. I note 
that Mr Gosek participated in the investigation conducted by Illawarra Coal. 

Section 387(c) whether the person was given an opportunity to respond to any reason 
related to the capacity or conduct of the person

[75] I have taken into account that Mr Gosek was provided with a Show Cause Letter on 8 
December 2016. Mr Gosek responded to that letter on 13 December 2016. Mr Gosek also 
attended a meeting on 3 January 2017 to provide confidential evidence regarding his 
mitigating health issues. I find that Mr Gosek was given an opportunity to respond to the 
reasons utilised by Illawarra Coal in relation to his conduct which eventually resulted in the 
termination of his employment. 

Section 387(d) any unreasonable refusal by the employer to allow the person to have a 
support person present to assist at any discussions relating to dismissal

[76] I am satisfied that, throughout this investigation process, Mr Gosek attended meetings 
with Illawarra Coal in the presence of his chosen support person. 

Section 387(e) if the dismissal related to unsatisfactory performance by the person--
whether the person had been warned about that unsatisfactory performance before the 
dismissal

[77] Mr Gosek was not terminated for unsatisfactory performance. I have taken into 
account that Mr Gosek had a very positive employment history at Illawarra Coal, having 
worked there for nearly 11 years without incident or reprimand. Further, I note that Mr Gosek 
acted as Mr Pomana’s replacement when Mr Pomana was absent from work. 

Section 387(f) the degree to which the size of the employer's enterprise would be likely to 
impact on the procedures followed in effecting the dismissal

[78] I have taken into account that Illawarra Coal (South32) is a large employer with 
detailed and well documented investigation procedures. 








[2017] FWC 4574

25

s387(g) the degree to which the absence of dedicated human resource management 
specialists or expertise in the enterprise would be likely to impact on the procedures 
followed in effecting the dismissal

[79] I have taken into account that Illawarra Coal (South32) have dedicated human 
resources specialists who were used to conduct the investigation into Mr Gosek’s conduct. 

Section 387(h) any other matters that the FWC considers relevant.

[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”. 








[2017] FWC 4574

26

[85] In his “Summary of Findings”, Mr Wood stated: 

“Summary of the Issue

On the 2nd September 2016 an event form was raised by Ryan Miller stating that he 
was getting constantly challenged by the deputy, Michael Goedde, around frictional 
ignition inspections (FI’s). R Miller believes that this challenging on several occasions 
impacts his ability to do his job and also challenges his ability as a tradesman to make 
decision that directly impact the mine. Leading up to the event form there was a 
critical interaction between the two individuals at a start of shift meeting on the date of 
the event that has raised the issue to a heard. This behaviour is allegedly impacting R 
Miller personally and he believes that the latest event now elevates the issue to a case 
of harassment and bullying. 

There is evidence of this particular issue being raised on several occasions and was 
believed to have been resolved on shift. M Goedde believes that his line of 
questioning of the trades is acceptable and also he believes he is consistent with all 
other trades. He also strongly believes that he is correct in his understanding of the FI 
standard and TARP as he knows the intent behind it. 

Both parties are extremely frustrated and want a resolution as quickly as possible.”24

[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 incident25. 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 








[2017] FWC 4574

27

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: 

“On the one hand, it can be in exceptional circumstances only that an employer is 
acting properly in summarily dismissing an employee on his committing a single act 
of negligence; on the other, their Lordships would be very loath to assent to the view 
that a single outbreak of bad temper, accompanied, it may be, with regrettable 
language, is a sufficient ground for dismissal. Sir John Beaumont, C.J., was stating a 
proposition or mere good sense when he observed that in such cases one must apply 
the standards of men, and not those of angels, and remember that men are apt to 
show temper when reprimanded.”26

(my emphasis)

[92] In Symes v Linfox Armaguard Pty Ltd, Cargill C held: 

“[90] the applicant’s use of swear words to Mr Hala was totally inappropriate and 
unwarranted…I accept that the use of bad language towards another person, especially 
a supervisor, is of a different character to swearing at an inanimate object or its use as 
an adjective such as describing traffic or weather. However, it is also relevant to 
consider the evidence that the respondent’s workplace is one in which bad language is 
commonly used and in which both Mr Armstrong and Mr Hala agreed that employees 
may have received mixed messages about such use.”27

[93] There is no doubt that Mr Gosek’s language was regrettable. However, I have 
considered, and taken into account, Mr Gosek’s situation. He was suffering from depression, 
on very strong medication, affected by alcohol and angered by the treatment of his co-worker. 
I have also taken into account Ms Thew’s evidence28 that she was not aware of any employee 
being disciplined for the use of inappropriate language in the last 5 years and her concession 
that it was a consideration which should be taken into account. I also note that Mr Gosek did 
not swear at his supervisor, Mr Pomana. 

[94] I have taken into account Mr Plavecky’s view that he was entitled to speculate and 
take action based upon his conclusions concerning the internal affairs of the CFMEU. 

Conclusion 

[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 








[2017] FWC 4574

28

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 








[2017] FWC 4574

29

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 








[2017] FWC 4574

30

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): 

“Hi Joel, 

Meeting on Monday might best be described as a lot of important mitigations 
that we would have been better to know of much sooner. Matt supplied two forms 
of medical evidence in support of his advice that he was suffering from severe 
depression. The advice also confirmed he was taking quite strong medication and that 
it is well known the impacts that this could have on short term memory, behaviour etc. 
Adding alcohol to this mix only makes things worse. 

But so that the process if as robust as it can be what now needs to happen is that 
after we get any reply to the attached I will update the full report (without 
recommendations) and resend that to you. It would be best if you read the entire 
report again and then consider your initial recommendation based on the new material.  
I have explained to Mick Thew this will add more paid at home time and whilst none 
of us are comfortable with that, getting the bet outcome is more important. Depending 








[2017] FWC 4574

31

on e-mail and your availability we might still get it done the week after Christmas but 
we will see. We explained all that to Matt and his support person (Ian Drain). 

Not the outcome we perhaps anticipated but life with people is often complicated. 
Have a wonderful Christmas but feel free to call me if you want to discuss in more 
detail. 

Kind regards
Gary Hatfield”29

(my emphasis) 

[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. 

Remedy 

[119] Having found that Mr Gosek’s termination was harsh, unjust or unreasonable, I now 
turn to the issue of remedy. 

[120] I have taken into account all of the parties submissions in relation to remedy. 








[2017] FWC 4574

32

[121] The relevant sections of the Act in relation to an appropriate remedy for a successful 
unfair dismissal application are:

“Section 390
When the FWC may order remedy for unfair dismissal 

(1)  Subject to subsection (3), the FWC may order a person's reinstatement, or the 
payment of compensation to a person, if: 

(a)  the FWC is satisfied that the person was protected from unfair dismissal 
(see Division 2) at the time of being dismissed; and 

(b)  the person has been unfairly dismissed (see Division 3). 

(2)  The FWC may make the order only if the person has made an application under 
section 394. 

(3)  The FWC must not order the payment of compensation to the person unless: 

(a)  the FWC is satisfied that reinstatement of the person is inappropriate; and 

(a) the FWC considers an order for payment of compensation is appropriate in 
all the circumstances of the case.

Section 391 
Remedy--reinstatement etc. 

Reinstatement 

(1)  An order for a person's reinstatement must be an order that the person's employer 
at the time of the dismissal reinstate the person by: 

(a)  reappointing the person to the position in which the person was employed 
immediately before the dismissal; or 

(b)  appointing the person to another position on terms and conditions no less 
favourable than those on which the person was employed immediately before 
the dismissal. 

          (1A)  If: 

(a)  the position in which the person was employed immediately before the 
dismissal is no longer a position with the person's employer at the time of the 
dismissal; and 

(b)  that position, or an equivalent position, is a position with an associated 
entity of the employer; 

the order under subsection (1) may be an order to the associated entity to: 








[2017] FWC 4574

33

(c)  appoint the person to the position in which the person was employed 
immediately before the dismissal; or 

(d)  appoint the person to another position on terms and conditions no less 
favourable than those on which the person was employed immediately before 
the dismissal. 

Order to maintain continuity 

(2)  If the FWC makes an order under subsection (1) and considers it appropriate to do 
so, the FWC may also make any order that the FWC considers appropriate to maintain 
the following: 

(a)  the continuity of the person's employment; 

(b)  the period of the person's continuous service with the employer, or (if 
subsection (1A) applies) the associated entity. 

Order to restore lost pay 

(3)  If the FWC makes an order under subsection (1) and considers it appropriate to do 
so, the FWC may also make any order that the FWC considers appropriate to cause the 
employer to pay to the person an amount for the remuneration lost, or likely to have 
been lost, by the person because of the dismissal. 

(4)  In determining an amount for the purposes of an order under subsection (3), the 
FWC must take into account: 

(a)  the amount of any remuneration earned by the person from employment or 
other work during the period between the dismissal and the making of the order 
for reinstatement; and 

(b)  the amount of any remuneration reasonably likely to be so earned by the 
person during the period between the making of the order for reinstatement and 
the actual reinstatement.

Section 392
Remedy-compensation 

Compensation 

(1)  An order for the payment of compensation to a person must be an order that the 
person's employer at the time of the dismissal pay compensation to the person in lieu 
of reinstatement. 

Criteria for deciding amounts 

(2)  In determining an amount for the purposes of an order under subsection (1), the 
FWC must take into account all the circumstances of the case including: 








[2017] FWC 4574

34

(a)  the effect of the order on the viability of the employer's enterprise; and 

(b)  the length of the person's service with the employer; and 

(c)  the remuneration that the person would have received, or would have been 
likely to receive, if the person had not been dismissed; and 

(d)  the efforts of the person (if any) to mitigate the loss suffered by the person 
because of the dismissal; and 

(e)  the amount of any remuneration earned by the person from employment or 
other work during the period between the dismissal and the making of the order 
for compensation; and 

(f)  the amount of any income reasonably likely to be so earned by the person 
during the period between the making of the order for compensation and the 
actual compensation; and 

(g)  any other matter that the FWC considers relevant. 

Misconduct reduces amount 

(3)  If the FWC is satisfied that misconduct of a person contributed to the employer's 
decision to dismiss the person, the FWC must reduce the amount it would otherwise 
order under subsection (1) by an appropriate amount on account of the misconduct. 
Shock, distress etc. disregarded 

(4)  The amount ordered by the FWC to be paid to a person under subsection (1) must 
not include a component by way of compensation for shock, distress or humiliation, or 
other analogous hurt, caused to the person by the manner of the person's dismissal. 

Compensation cap 

(5)  The amount ordered by the FWC to be paid to a person under subsection (1) must 
not exceed the lesser of: 

(a)  the amount worked out under subsection (6); and 

(b)  half the amount of the high income threshold immediately before the 
dismissal. 

(6)  The amount is the total of the following amounts: 

(a)  the total amount of remuneration: 

(i)  received by the person; or 

(ii)  to which the person was entitled; 








[2017] FWC 4574

35

(whichever is higher) for any period of employment with the employer 
during the 26 weeks immediately before the dismissal; and 

(b)  if the employee was on leave without pay or without full pay while so 
employed during any part of that period--the amount of remuneration taken to 
have been received by the employee for the period of leave in accordance with 
the regulations.

Submissions

[122] Mr Gotting submitted that reinstatement was inappropriate on the basis that: 

a) Mr Gosek’s conduct has caused significant divisions amongst the employees at the 
Dendrobium Mine;

b) some of the employees on the long wall crew are still suffering the effects of Mr 
Gosek’s conduct and Illawarra Coal are concerned about the on-going effects of the 
trauma if Mr Gosek returned to the workplace; 

c) his Supervisor, Mr Pomana believes that he will have problems supervising Mr 
Gosek in the future;

d) Mr Gosek has failed to take responsibility for his conduct;

e) Illawarra Coal has lost confidence in Mr Gosek respecting the proper process for 
resolving disputes;

f) the likelihood that Mr Gosek’s conduct will re-occur; and 

g) the reinstatement of Mr Gosek will condone his conduct. 

[123] Ms Howell submitted that: 

a) Reinstatement is the primary remedy under the Act and that remedy that is sought 
by Mr Gosek; 

b) the majority of the reasons submitted by Illawarra Coal why reinstatement is not 
appropriate are based on the hearsay evidence of the 7 employees and that Illawarra 
Coal wished to rely on their evidence then they should have called these employees to 
give evidence; 

c) the views and opinions of Mr Plavecky should be discounted on the basis that he no 
longer works at the Denrobium Mine; 

d) the proposition that Mr Gosek’s reinstatement would indicate to the workforce that 
his conduct was acceptable is manifestly incorrect; 

e) Mr Pomana’s evidence, when taken as a whole, supports the proposition that Mr 
Gosek’s reinstatement is appropriate; and  








[2017] FWC 4574

36

f) Mr Gosek’s conduct does not constitute serious and wilful misconduct. 

Precedent 

[124] In Holcim Australia v Serafina it was held that the Commission must determine the 
appropriateness of reinstatement before considering any other remedy. 

[125] In Perkins v Grace Worldwide (Aust) Pty Ltd30, the Full Court of the Industrial Court 
said: 

“... we accept that the question whether there has been a loss of trust and confidence is 
a relevant consideration in determining whether reinstatement is impracticable, 
provided that such loss of trust and confidence is soundly and rationally based. 

At the same time it must be recognised that, where an employer, or a senior officer of 
an employer, accuses an employee of wrongdoing justifying the summary termination 
of the employee’s employment, the accuser will often be reluctant to shift from the 
view that such wrongdoing has occurred, irrespective of the Court’s finding on that 
question in the resolution of an application under Division 3 of Part VIA of the Act. 

If the court were to adopt to a general attitude that such a reluctance destroyed the 
relationship of trust and confidence between employer and employee, and so made 
reinstatement impracticable, an employee who was terminated after an accusation of 
wrongdoing but later succeeded in an application under the Division would be denied 
access to the primary remedy provided by the legislation. Compensation, which is 
subject to a statutory limit, would be the only available remedy. Consequently, it is 
important that the Court carefully scrutinise any claim by an employer that 
reinstatement is impracticable because of loss of confidence in the employee. 

Each case must be decided on its own merits.”

[126] In Nguyen v Vietnamese Community in Australia31 a Full Bench held: 

“[28] Ultimately, the question is whether there can be a sufficient level of trust and 
confidence restored to make the relationship viable and productive. In making this 
assessment, it is appropriate to consider the rationality of any attitude taken by a 
party.”

Conclusion 

[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 








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37

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. 








[2017] FWC 4574

38

[138] I so Order. 

COMMISSIONER

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Price code G, PR595803

                                               
1 Witness statement Joanne Thew JT-17
2 Exhibit G4 email dated 8 October 2016
3 Exhibit G5 - Draft Investigation Report
4 PN1178-1195 – Transcript  22 June 2017
5 Investigation Report – 7 December 2016
6 Witness statement Matthew Gosek - Annexure MG7
7 Exhibit G4 page 45 emailed dated 3 January 2017
8 Exhibit G4 Letter dated 31 January 2017
9 (1959) 101 CLR 298
10 Annexure JT-01 attachment 2
11 (1995) 185 CLR 410
12 (1998) 84 IR 1
13 (1995) 62 IR 371
14 [2017] FCA 847
15 PN1073 – 1083 Transcript 22 June 2017
16 PN1096-1102 – Transcript 22 June 2017
17 PN1088 – Transcript 22 June 2017
18 PN2081 – Transcript 23 June 2017
19 PN2087 – Transcript 23 June 2017
20 [1998] AIRC 1592
21 Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285; applied in North v Television Corporation Ltd 

(1976) 11 ALR 599.
22 (1996) 140 ALR 625 at 636.
23 PN2268 – 2271 - Transcript 22 June 2017
24 Witness statement Sean Wood annexure SW-06
25 PN 2947 - Transcript 22 June 2017
26 [1937] 3 All ER 67 at 73 and 74
27 [2012] FWA 4789
28 Exhibit I2
29 Email from Gary Hatfield to Joel Plavecky 20 December 2016
30 [1997] IRCA 15; 72 IR 186
31 [2014] FWCFB 7198

Cases cited by this decision: