| [2018] FWCFB 1829 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Illawarra Coal Holdings Pty Ltd T/A South32
v
Matthew Gosek
(C2017/6113)
DEPUTY PRESIDENT GOOLEY |
MELBOURNE, 6 APRIL 2018 |
Appeal against decision [2017] FWC 4574 of Commissioner Riordan at Sydney on 3 November 2017 in matter number U2017/1865.
[1] The majority of the Full Bench upheld the appeal lodged by Illawarra Coal against the decision of the Commission that Mr Gosek’s dismissal was unfair. In that decision, the majority advised that it intended hearing and determining the matter of Mr Gosek’s application for an unfair dismissal remedy itself based on the evidence currently before the Commission, subject to any application to admit additional evidence.
[2] No application to admit new evidence was made. Mr Gosek did oppose the course of action proposed by the Full Bench and directions were issued to enable the parties to be heard in relation to this. The Full Bench determined that it was not persuaded to remit the matter to another member to hear and determine. It considered that, given the narrow factual dispute between the parties, it was in as good a position as another member of the Commission to determine Mr Gosek’s application.
[3] The matter was listed for hearing and both parties filed submissions in support of their respective positions. The task before this Full Bench is to determine if the dismissal of Mr Gosek was unfair and if so what remedy, if any, it should order.
[4] As was put by Mr Follett, for Illawarra Coal, “this case boils down to misconduct, inappropriate behaviour.” Illawarra Coal says the conduct was “serious, and it is concerning to any employer, and there is a sound process in terms of how Mr Gosek came to be dismissed for the purpose of section 387(b) and (c) ..... We then have a case essentially advanced by the applicant that there were mitigating and extenuating circumstances attached to the conduct as well as attached to the whole surrounds that lead to a weighing in the applicant’s favour. The departure between us is, when you look at those things, what do you have and what is their significance and which side of the line does this dismissal fall down on.” 1
[5] This is not a case in which Mr Gosek denies engaging in the alleged conduct. As was submitted by Ms Howell, “Mr Gosek has admitted all aspects of the conduct alleged against him on 4 October 2016, even though he has no recollection of much of what he is alleged to have said during the telephone calls he received from the seven employees.” 2
[6] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the following:
[7] Illawarra Coal relied on the matters set out in the show cause letter and termination letter to support its submission that there was a valid reason for the dismissal.
[8] It was alleged that:
1. On Tuesday 4 October 2016, Mr Gosek initiated and participated in abusive, intimidatory and derogatory phone calls and texts to seven fellow CFMEU members and his shift maintenance supervisor.
2. The text message he initiated to the impacted employees stated the word ‘dog’ and in subsequent phone calls he referred to them as ‘dog cu..ts’ and ‘f…ing dogs’.
3. Also in subsequent phone conversations to fellow CFMEU lodge members he 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 have done; and ongoing employment.
4. These activities extended over a period of 4 to 5 hours, commencing from around 3pm. Calls varied in length from a couple of minutes to up to 48 minutes.
5. Those employees, and in some cases their families, viewed his conduct as offensive, intimidating or unwelcome.
[9] Mr Gosek admitted the allegations in the show cause letter and the termination letter 3 and therefore we are satisfied that the alleged conduct occurred.
[10] What is in dispute between the parties is the characterisation of this conduct.
[11] Ms Howell submitted that in assessing the conduct regard must be had to the surrounding circumstances. In support of that proposition, reliance was placed on the decision of the Full Bench in Diaz v Anzpac Services (Australia) Pty Ltd 4 where the Full Bench held it was appropriate to take into account contextual matters bearing upon the degree of culpability on the part of the employee in determining whether there was a valid reason for the dismissal. Mr Follett did not express a concluded view on this, submitting that whether these factors were considered under s.387(a) or (h) did not matter. Regard had to be had to these matters in any event.5
[12] Ms Howell relied upon the following factors to support her submission that there was not a valid reason for the dismissal:
1. Mr Gosek had a previously unblemished record during his 12 years of service;
2. Mr Gosek was not at work when the conduct occurred;
3. Mr Gosek was impaired as a result of his alcohol consumption;
4. Mr Gosek was being treated for severe depression at the time of the incident and taking medication;
5. Mr Gosek immediately apologised to the employees involved the following day;
6. Mr Gosek had not consumed alcohol since the incident;
7. Mr Gosek was treated more harshly than other employees accused of bullying at work;
8. Mr Gosek engaged in the conduct because he believed the employees were not supporting a fellow employee who he believed was being bullied. 6
[13] While factors (3) and (4) are relevant to the determination of whether there was a valid reason for dismissal, as they provide a reasonable explanation for why Mr Gosek behaved as he did, they neither excuse his conduct nor diminish the gravity of his conduct.
[14] We are not satisfied that Mr Gosek’s previously unblemished record is relevant to the consideration of whether there is a valid reason for his dismissal. We consider that the factual situation in Diaz is different to the situation of Mr Gosek. Mr Diaz had repeatedly engaged in inappropriate conduct and had been warned about that conduct. While the member at first instance had considered that this conduct, if it had been a one off incident, would not have justified dismissal, the previous conduct and the warnings were relevant factors in deciding if there was a valid reason for dismissal. Merely because this was Mr Gosek’s first offence, does not detract from the seriousness of his conduct.
[15] While we accept that Mr Gosek’s conduct did not occur at work, we consider that it had a direct connection with work and this does not diminish the gravity of Mr Gosek’s conduct.
[16] We do not consider it relevant to the question of whether there is a valid reason for the dismissal that Mr Gosek has not consumed alcohol since the event. While we consider that this may be relevant to our overall consideration, we do not see how it diminishes the gravity of Mr Gosek’s conduct.
[17] Neither do we consider the fact that Mr Gosek apologised for his conduct the next day is relevant to whether there was a valid reason for the dismissal. Again, while we consider that this may be relevant to our overall consideration, we do not see how it diminishes the gravity of Mr Gosek’s conduct.
[18] We also do not consider the submission that Mr Gosek was treated differently to other employees accused of bullying whilst at work is relevant to the question of whether there was a valid reason for the dismissal. While it may be relevant to our overall consideration, we do not see how it diminishes the seriousness of Mr Gosek’s conduct. We are not assessing Illawarra Coal’s conduct when deciding if there is a valid reason for the dismissal, we are assessing Mr Gosek’s conduct. That a view might be formed that other employees engaged in conduct that would support a finding that there was a valid reason for their dismissal, but who were not dismissed, does not diminish from Mr Gosek’s conduct. We agree that it is a relevant consideration to our overall consideration but the question before us is whether the conduct engaged in by Mr Gosek provides a valid reason for the dismissal. That requires an objective assessment by the Commission of the conduct and the gravity of that conduct.
[19] We do not consider Mr Gosek’s motives are a relevant consideration in determining whether there was a valid reason for the dismissal. Even if Mr Gosek’s beliefs about the employees’ role in the investigation were correct, that would never justify Mr Gosek’s conduct.
[20] Mr Gosek sent seven employees a text saying ‘dog’. While there was a dispute about what Mr Gosek meant by this term he accepted, in response to a question from the Commissioner in the first hearing, that the term is used in the trade union movement to “describe people that you believe ratted on their mate.” Mr Gosek said he felt that the employees had lied and he was upset with them. 7 Mr Gosek accepted that the text message would convey to the employees that he was upset with them.8
[21] He further, despite not remembering the details of the conversations, admitted the language used and threats made.
[22] The employees made statements about these incidents. Those statements were objected to by Ms Howell because the employees were not called to give evidence and as such, they were hearsay. The Commission is not bound by the rules of evidence and in any event we are satisfied that the records of interview are admissible under the exception to the hearsay rule in that they are business records. 9 The statements were made shortly after the event in question.
[23] We do not in this decision set out all the details of the phone calls. The phone call with Mr Paul Cross captures the nature of the conversations Mr Gosek had.
[24] Mr Cross recorded in his statement that Mr Gosek called him a “f…ing dog c..t” and told him he should have backed Ryan and not the Deputy. Mr Gosek said that the “L/W crew are f…ing dog c...ts and we will pay for that.” Mr Gosek said he would be “putting forward that we be removed from the Lodge voted out and he has the backing of the men he will make it happen.” Mr Cross said that Mr Gosek was in a drunken state and told him he was a nice bloke and then in the next breath said he was a f…ing dog c..t. Mr Gosek said he was going to make it personal by catching up with him and going to take him down. He asked if he was big enough, tough enough and can he fight because he was going to end him. Mr Cross said he had to explain to his 10 year old son the language used by Mr Gosek because he overheard the call.
[25] These threats were serious. They involved both threats of violence and threats of retaliation because Mr Gosek took the view that the employees had not backed up another employee’s complaint against the Deputy. Because Mr Gosek did not agree with the outcome of the investigation into this complaint, he formed the view that the employees lied. Now while Mr Gosek was entitled to discuss this issue with the employees, he was not entitled to threaten them or abuse them.
[26] As was acknowledged by Mr Gosek he “had done something horribly wrong.” 10
[27] This conduct had the potential to make employees reluctant to participate in investigations conducted by their employer for fear of retribution. We are satisfied that Mr Gosek’s conduct was misconduct, and while we are not satisfied it was serious misconduct as defined in the Act, it was serious as the term is generally understood and justified his dismissal.
[28] We are therefore satisfied that there was a valid reason for the dismissal related to Mr Gosek’s conduct.
[29] It was submitted that Mr Gosek was not notified of the valid reason for the dismissal. Ms Howell relied on the information provided in the Form F3 filed by Illawarra Coal in response to the application filed by Mr Gosek. That included allegations that Mr Gosek had threatened to remove employees from the Lodge and had used racially charged language and that Mr Gosek had variously said words to the effect of “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 as you don’t stand up for fellow workers”, “If you ever cross me you will pay for it” and “You will be kicked out of the union for not backing Ryan Miller”.
[30] Illawarra Coal submitted that Mr Gosek was informed that Illawarra Coal alleged that he had threatened to cause his work colleagues to be removed from the Lodge. 11 Further, it submitted that allegations that Mr Gosek said “I will kick you off 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 and sort it out; and you should quit your job” were put to Mr Gosek for his response.12
[31] Illawarra Coal denied that it had relied at the time of the dismissal as a reason for the dismissal that Mr Gosek had used racially charged language or that he had said “If you ever cross me you will pay for it” and “You will be kicked out of the union for not backing Ryan Miller”. 13
[32] Ms Howell made no further submission on this point.
[33] We are satisfied that Mr Gosek was advised of the reasons for the dismissal prior to the decision to dismiss being made. We are satisfied that the reasons for the dismissal did not include those additional reasons set out in the employer response form.
[34] Ms Howell made a similar submission to that made above. We are satisfied that Mr Gosek was given an opportunity to respond to all of the reasons related to his conduct.
[35] Mr Gosek was allowed a support person.
[36] The dismissal did not relate to unsatisfactory performance.
[37] No submissions were made in relation to this criterion.
[38] No submissions were made in relation to this criterion.
[39] Ms Howell submitted that the dismissal was harsh and unreasonable. It was submitted that the matters set out at [12] were all relevant considerations in determining if the dismissal was harsh as well as unreasonable.
[40] Mr Follett accepted that the factors were relevant. However, he submitted that it was not possible to conclude that the dismissal was harsh. Mr Follett submitted that Mr Gosek bore the evidentiary onus of establishing the mitigating circumstances. 14 Mr Follett accepted that there was evidence of “depression, medication”… “drinking and family bereavement.”15 However, it was submitted that that evidence should not be enough to persuade the Full Bench that the dismissal was harsh. It was submitted that there needs to be a “direct cause and effect between these things and what he decided it was that he was to do.”16 It was submitted that “Mr Gosek has to persuade [us] to look at that material and say [we are] prepared to say it is more likely than not that he would not have engaged in the conduct absent one or more of those things, and it’s only if [we] reach that level of persuasion that you can regard it as a mitigating or extenuating circumstance.”17
[41] It is clear from the evidence that this was the first time Mr Gosek had engaged in inappropriate conduct. It was not disputed that he had an unblemished work history. 18 Mr Gosek gave evidence that in his 42 years “nothing like that ever happened before.”19 Mr Gosek was the CFMEU Lodge President and had not behaved inappropriately in that role. Ms Joanne Thew, a Human Resources Business Manager, gave evidence that she dealt with Mr Gosek when he had been representing members about 5-10 times and the interactions were always polite and courteous.20
[42] It is also clear that the conduct was out of character. In the notes of Mr Cross’ interview record, Mr Cross acknowledged that the conduct was out of character for Mr Gosek. 21 In the notes of Mr Pomana’s interview record, Mr Pomana acknowledged that it “wasn’t the Matt I know. Seems out of character.”22 In the notes of Mr Smith’s interview record, Mr Smith acknowledged that it was totally out of character23 as did Mr Brown.24
[43] As a result it is appropriate to consider whether this conduct was an aberration and that other factors explain the conduct such as to make the dismissal harsh.
[44] While it is true that Mr Gosek was not at work when the incidents occurred, there was a sufficient connection with the workplace to support there being a valid reason for the dismissal. While this is relevant, the mere fact that this conduct occurred outside of work would not persuade us that the dismissal was harsh.
[45] Mr Gosek gave evidence that he had been drinking heavily on 4 October 2016. 25 In notes made by Mr Cross at the time he described Mr Gosek as being in a “drunken state.”26 In the notes of Mr Pomana’s interview record, Mr Pomana said it “sounded like alcohol was involved.”27 In the notes of Mr Smith’s interview record, Mr Smith described Mr Gosek as “intoxicated.”28 Mr Rodriguez said Mr Gosek “seemed intoxicated” and was “slurring words.”29 That he was intoxicated is relevant but the mere fact that he was intoxicated would not persuade us that the dismissal was harsh.
[46] There was no challenge to this evidence. Mr Gosek gave evidence that he “had been suffering from a mental illness which had been diagnosed as severe depression in July 2016.” He said he had been “suffering from the mental illness for some 12 months prior to July 2016 and that [his] doctor had placed [him] under a Mental Health Plan/Assessment.” 30 He had been referred to counselling.31 Mr Gosek gave evidence that he was taking Cymbalta and that his dosage had in July 2016 doubled.32 This evidence was not challenged. Illawarra Coal tendered evidence of the impacts of Cymbalta however that evidence did not discuss the impact on a person using alcohol and Cymbalta.33 The only evidence before the Commission about this was from Mr Gosek who told the investigators that alcohol did impact on the effectiveness of the anti-depressant.34 We are satisfied that his mental health is a relevant consideration but again by itself it would not persuade us that the dismissal was harsh.
[47] There was no dispute that Mr Gosek apologised to the employees and that those apologies occurred before he was aware that any complaint had been made about his behaviour. What was in dispute was whether the apologies were accepted. While this would be relevant to remedy, it cannot be doubted that Mr Gosek’s apologies were genuine. That he apologised without prompting supports a finding that he was genuinely contrite. Of course an apology does not excuse or explain his behaviour but it does support a finding that the conduct was an aberration and that the dismissal was harsh.
[48] Mr Gosek gave unchallenged evidence that as a consequence of this incident he had stopped consuming alcohol. We are not satisfied that this is relevant to whether the dismissal was harsh.
[49] It was submitted that Mr Gosek was treated more harshly than Mr Goedde and Mr Donnelly. Mr Goedde was said to have engaged in bullying at work and said to Mr Miller “just don’t lie to me.” Mr Miller lodged a complaint which was investigated. Mr Donnelly was alleged to have said about another crew member to others that he was “a pest”, a “dumb c**t” and that he had failed his deputy’s exam. 35 In the first case, despite Mr Goedde accepting that he made the comment, no disciplinary action was taken and in the second case because the complainant didn’t want any further action taken and only wanted someone to have a quiet word with Mr Donnelly, no formal investigation took place and no disciplinary action was taken. These incidents occurred in the work place. It was accepted by Mr Gosek that this conduct was not equivalent to his conduct but that the approach of Illawarra Coal was inconsistent and that despite the conduct occurring at work neither was even reprimanded.
[50] We are not satisfied that the conduct of these employees is in the same league as Mr Gosek’s conduct such as to support a finding that the dismissal was harsh.
[51] The majority of the Full Bench found that the conduct was engaged in because the other employees had participated in an investigation. 36 The Full Bench further held that because Mr Gosek disagreed with the outcome of the investigation, he formed the view that the employees had lied.37
[52] On re-hearing, it was put that Mr Gosek did not object to the employees participating in the investigation, in fact, he wanted an investigation. It was accepted that Mr Gosek did not agree with the outcome of the investigation. Mr Gosek’s concern was that the employees had lied to the investigators. We do not disagree with this submission but do not consider that it is inconsistent with the conclusions of the majority when [83] and [84] are read together. There was no basis for Mr Gosek to conclude that the employees had done anything other than report what they had heard or observed in the investigation. Mr Gosek did not ask any of the employees what they had said. He gave them no opportunity to put their version of events. He assumed that they were “dogs”, that is, that they had ratted on a mate. 38 Mr Gosek’s belief that they were not supporting a fellow employee who he believed was being bullied was no justification for his conduct. It was not their role in any investigation to support Mr Miller. It was their role to tell the investigator what they had observed.
[53] We are not satisfied that Mr Gosek’s motives justify his conduct or support a finding that the dismissal was harsh.
[54] In Mr Gosek’s submissions to the Full Bench, further mitigating circumstances were relied upon:
1. Mr Gosek’s mental illness had an extremely severe impact on his family and that this had led to excessive drinking on his part. 39
2. Mr Gosek was having trouble adjusting to the effects of the increase in his medication. 40
3. Mr Gosek was dealing with the loss of a close family member and “depression was basically running his life.” 41
4. Mr Gosek was feeling run down and exhausted, had not been attentive to his family and was sleeping up to 14 hours a day as a way of being left alone. 42
5. Mr Gosek was stressed by his (unsuccessful) involvement in the Ryan Miller investigation. 43
[55] We are satisfied that the factors relied upon by Ms Howell do assist in explaining Mr Gosek’s behaviour. We accept that while there is insufficient evidence for us to conclude that the combination of alcohol and depression caused his conduct, we are satisfied that we can draw an inference that the conflagration of factors caused an otherwise reasonable man to behave in a manner that everyone agreed was out of character. Accordingly, his conduct should be seen in this context. While we accept that Mr Gosek chose to drink, we consider that his judgement was sufficiently impaired by the combination of factors to allow us to conclude that his conduct was not wilful.
[56] We are satisfied that the termination was harsh. The consequences for Mr Gosek for this one off event are significant. He lost a secure job and his reputation amongst his fellow workers and Illawarra Coal. Until this incident, Illawarra Coal had valued him sufficiently and appointed him acting supervisor in Mr Pomana’s absence. Illawarra Coal did not have any concerns until this incident that Mr Gosek would not comply with their policies and procedures and, given his appointment as acting supervisor, he had a responsibility for ensuring that others followed those procedures. Mr Gosek had to deal with a range of matters including the death of a family member, depression and physical exhaustion. As well, he abused alcohol with little regard to the potential impact this may have on his mental health. While none of this excuses his behaviour, we are satisfied that it is sufficient to tip the balance in favour of a finding that the dismissal was harsh.
[57] Having found that the dismissal was harsh, it is necessary for consideration to be given to the remedy.
[58] Remedies for unfair dismissals are dealt with in Division 4 of Part 3-2 of the Fair Work Act 2009 (ss.390-393). Section 390 is the relevant provision for present purposes. It states:
“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
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
[59] The Full Bench in Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter 44 note the primacy given to reinstatement as a remedy:
“[10] Subsection 390(3) underscores the primacy of reinstatement as a remedy for an unfair dismissal as the discretion to order a remedy of compensation may only be exercised if the Commission is satisfied that reinstatement is ‘inappropriate’. Further, one of the objects of Part 3-2 of Chapter 3, in which the unfair dismissal provisions appear, is “to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement”. We would observe that to describe reinstatement as the ‘primary remedy’, is to simply recognise that reinstatement is the first, perhaps even the foremost, remedy under the Act. The relevant question in determining whether to grant the remedy of reinstatement of an employee in relation to a dismissal that is found to have been ‘unfair’ is whether reinstatement is appropriate in the particular case.” (references omitted)
[60] In this matter, Illawarra Coal submitted that reinstatement was not appropriate. It was submitted that:
(a) Mr Gosek’s conduct has caused significant division 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 ongoing effects of the trauma if Mr Gosek returned to the workplace;
(c) His supervisor, Mr Pomana, believes 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 processes 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.
[61] We consider each of these submissions in turn.
[62] (a) While it is undoubtedly true that Mr Gosek’s conduct offended the employees and caused significant upset and distress at the time it occurred, we do not understand how this supports a submission that he has caused division amongst the employees. The statements of the employees immediately after the incident do not support a finding that there is significant division amongst the employees.
[63] Mr Cross acknowledged the apology he received and made no comment about his ongoing relationship with Mr Gosek. Mr Graovac told the investigator that he didn’t want to put Mr Gosek in a difficult situation. 45 He told Mr Plavecky that he didn’t want to go ahead with the investigation because Mr Gosek was his mate.46 Mr Smith referred to the apology and said he gets along well with Mr Gosek and accepted that he must have been under stress re Miller/Goedde incident.47 In his own notes, Mr Smith recorded that he ended the apology phone call “in good spirits and told him to keep his head up.”48 Mr Brown said he was short with Mr Gosek when he rang to apologise.49 Mr Rodriguez said that he didn’t want Mr Gosek’s apology and that he had lost all respect for him.50 It is relevant that they gave these statements despite receiving an apology from Mr Gosek. From this, it is clear that the apology did not resolve the matter for the employees.
[64] Mr Pomana gave evidence and opposed reinstatement. His statement included some generalised statements about the views of the crew. None of the statements were sourced nor did he advise what was said. In his evidence in chief, Mr Pomana said that if reinstated he could not supervise Mr Gosek. He said it would cause him “so much stress to be worrying about the capacity for future conduct of a similar nature.” He said Mr Graovac and Mr Rodriquez are still upset but does not provide any direct evidence of anything that was said to him by them that would cause him to reach this conclusion.
[65] That things change over time is evident from Mr Pomana’s evidence. He initially said that one of the employees would leave if Mr Gosek was reinstated but by the time of the hearing he withdrew this evidence because he said the worker had changed his view. 51 Similarly, in cross examination, when it was put to Mr Pomana that he didn’t want Mr Gosek to get his job back, he said that was not his position.52 He maintained that he would still have some difficulties if he were required to supervise Mr Gosek but he would be happy for him to get his job back.53
[66] Mr Gosek and Mr Hackett gave evidence of conversations with the employees after the event and after his apologies.
[67] There were submissions made about where the evidentiary burden lay in these matters. In the end, the Commission must make a decision based on the evidence before it. We are not satisfied based on the evidence before the Commission that Mr Gosek’s conduct caused such division amongst the employees that it would weigh against reinstating Mr Gosek. That is not to downplay the immediate impact of the incident. Nor does it negate the fact that some of the employees did not accept Mr Gosek’s apology at the time.
[68] (b) In support of this submission, Illawarra Coal rely on the evidence of Mr Plavecky 54 in which he gives hearsay evidence of what employees have said to him. His evidence is that some support Mr Gosek and some do not. Mr Pomana also gives hearsay evidence about some people supporting Mr Gosek and others not.55 Mr Pomana, in re-examination, said that some don’t want him back and some are still affected by what happened. Mr McLeod said he would be concerned that Mr Gosek will not be able to re-establish a good working relationship with the victims of his harassment.56 Mr McLeod gave evidence in chief of the discussions he had with employees. Mr Wood said reports that members still have negative feelings about what happened and one employee had, in confidence, discussed his ongoing feelings of concern regarding the situation.
[69] We are not satisfied based on the evidence before the Commission that members of the long wall crew are still suffering the effects of Mr Gosek’s conduct. There is no direct evidence to support this proposition. To the extent that Illawarra Coal sought to rely on this submission, it bore the evidentiary burden of establishing a basis for the contention.
[70] (c) We are satisfied that Mr Pomana will have difficulty supervising Mr Gosek. This weighs against a finding that reinstatement is appropriate.
[71] (d) We do not accept that Mr Gosek did not take responsibility for his conduct. Mr Gosek apologised to the employees and accepted that he had done the wrong thing. Illawarra Coal do not point to any evidence to support this submission. Illawarra Coal, in their final submissions to the Commissioner, linked this to their contention that there was a risk of repeated conduct and that creates an occupational health and safety risk to other employees. 57
[72] (e) We accept that the evidence of Illawarra Coal supports a finding that they have lost confidence in Mr Gosek following the proper process for dealing with complaints. However, it is necessary to view this evidence in context. Mr Gosek has been involved in representing employees as Lodge President. This is the only time an incident of this nature has occurred. Mr Gosek was dissatisfied with the outcome of the investigation into Mr Miller’s complaint. He raised with Mr Plavecky his concerns and told him that unless he investigates the matter further he would take it further. Mr Plavecky did not object to this course of action if Mr Gosek was dissatisfied with the outcome. We are not satisfied that the making of the phone calls to Mr Pomana and the other workers supports a finding that Mr Gosek will not follow the procedures in the future. We accept the evidence from the participants that this conduct was completely out of character.
[73] (f) We are further not satisfied that the evidence supports a finding that Mr Gosek is likely to engage in this type of conduct again. We do not accept the submission that Mr Gosek’s views about union principles means that he would place those principles above Illawarra Coal’s processes. There is no evidence that he has ever done this before and further, there was no evidence that Mr Gosek’s principles extend to supporting union members irrespective of what they had done. We do accept that Mr Gosek’s initial response to the allegations was concerning. However, he had a very poor memory of what he had said and when confronted with the statements made by the other workers, he accepted their evidence even if it did not accord with his view about what he would usually say.
[74] (g) We are not satisfied that reinstatement would be seen as condoning Mr Gosek’s conduct. We have made it clear that Mr Gosek’s conduct was wholly unacceptable. No one observing what had happened would get the impression from Mr Gosek, the CFMEU, Illawarra Coal or the Commission that this was acceptable conduct. Further, Illawarra Coal is not prevented from taking disciplinary action against Mr Gosek for his conduct.
Conclusion
[75] The decision to reinstate Mr Gosek in light of his behaviour is finely balanced. We have had regard to the seriousness of his conduct. We have had regard to the circumstances in which the conduct occurred and we have had regard to the matters relied upon by Illawarra Coal to oppose reinstatement. On balance, we accept that the conduct was affected by a combination of circumstances or, as Ms Howell put it, a perfect storm of circumstances that satisfies us that this once off event, albeit directed at eight employees over several hours, is unlikely to be repeated. On balance, we have reached the conclusion that Mr Gosek should be reinstated.
[76] We consider that it is appropriate that an order be made maintaining the continuity of employment and his period of continuous service. However, we do not consider it appropriate in light of the circumstances that there be any order for remuneration lost. We do so to reflect the seriousness with which we view Mr Gosek’s conduct.
[77] The history of this matter is set out in the reasons for decision of Deputy President Gooley and Commissioner Booth.
[78] This decision concerns the re-determination of Mr Gosek’s unfair dismissal application following a decision (the appeal decision) of the Full Bench on 23 February 2018 58 quashing an earlier decision and re-instatement order of Commissioner Riordan.59
[79] In re-determining the matter, the Commission is doing so “on the basis of the material currently before the Commission.” 60 This includes the substantial evidentiary material that was before Commissioner Riordan and the further written and oral submissions made on the re-determination.61
[80] This re-determination requires the Commission to determine whether Mr Gosek had been unfairly dismissed by Illawarra Coal on 31 January 2017 in light of the findings and conclusions of the appeal decision plurality. It will be (and only be) an unfair dismissal if it was “harsh, unjust or unreasonable” within the meaning of section 387 of the Fair Work Act 2009. Only if the dismissal is so characterised do issues of remedy arise.
[81] Mr Gosek was terminated on notice for misconduct. The particulars were set out in a letter of termination sent to him by his employer. 62 They concerned abusive and threatening text messages and phone calls made on 4 October 2016 to seven employees and a shift maintenance supervisor.
[82] By and large, the primary facts are not in dispute. What has been in dispute is the characterisation of the conduct and the conclusions to be drawn from those facts. The primary findings on which I base this re-determination are largely those found by the plurality in the appeal decision. However, I draw my own conclusions from these primary facts and the evidence as a whole.
[83] The decision to dismiss was made after an investigation conducted by the employer. Factual matters concerning that investigation (including its deficiencies) are also not in dispute.
[84] Mr Gosek’s case was advanced largely on the proposition that, despite these facts, the combination of alleged deficiencies in the investigation and mitigating factors that are said to render the dismissal at the very least harsh if not unjust or unreasonable.
[85] Mr Gosek asserts these mitigating factors to be relevant to whether there was a valid reason for dismissal (section 387(a)) and also to the question of whether, in all the circumstances, the dismissal was harsh, unjust or unreasonable.
[86] Thus, the character of the misconduct and the nature of these mitigating factors and their evidentiary basis are crucial to the determination of this matter.
[87] The employer’s case is that a valid reason for dismissal existed. It says that notwithstanding acknowledged deficiencies in its investigation, Mr Gosek was provided an opportunity to respond to the allegations made, and did so. The employer says that the conduct, properly characterised, constituted misconduct of a serious nature involving both abuse and threats made over a prolonged period of time. The employer says that the deficiencies in the investigation do not render the dismissal harsh, unjust or unreasonable. The employer says that both aggravating and mitigating circumstances exist. It says, to the extent the mitigating factors asserted are established on the evidence, they do not outweigh the seriousness of the misconduct and its aggravating factors so as to render the dismissal harsh, unjust or unreasonable. The employer further asserts that certain of the mitigating factors are either not relevant or not established on the evidence to an appropriate level of satisfaction.
[88] I turn to consider each of the criteria set out in section 387 for determining whether a dismissal is harsh, unjust or unreasonable.
[89] Mr Gosek was dismissed for conduct and behaviour considered by his employer to be intimidation and harassment in breach of its Code of Business Conduct 63 and the employee’s duties as an employee.
[90] The conduct and behaviour of Mr Gosek on 4 October 2016 occurred at the Dapto Hotel on an afternoon when he was not rostered to work. At the relevant time, Mr Gosek was the elected President of the CFMEU at the mine where he and the employees were working. The context was that Mr Gosek was dissatisfied with a mine manager’s investigation into a bullying complaint where Mr Gosek had represented a CFMEU member. Mr Gosek believed, as it turned out wrongly, that fellow employees (and CFMEU members) had not been truthful whilst participating in the investigation.
[91] Over a four to five hour period, Mr Gosek sent a one word text message to seven fellow employees (and union members) and to his supervisor: “Dog?” He then had phone conversations with each as they rang him or he returned their calls. The phone conversations concerned the bullying investigation and varied in length and content. In each of the calls, Mr Gosek was abusive, insulting and threatening. Mr Gosek called the persons “dogs”, “dog cunts” and “fucking dogs”. He made threats including a threat to kick a person out of the union (the Lodge), a threat to withdraw union support for a person, a threat to hunt a person down and destroy them, and he challenged another to a physical fight.
[92] The employees and in some cases their families viewed the conduct as offensive, intimidating and unwelcome.
[93] Mr Gosek was not provoked by the employees into being abusive or threatening. The conversations were tense and heated.
[94] I am satisfied that this conduct constituted a valid reason for dismissal, and make that finding. They were expletive filled tirades of foul abuse and personal threats directed to fellow employees individually. They were unwelcomed and unsettling. At the time they were delivered, they constituted intimidation and harassment inconsistent with an effective employer/employee relationship and the maintenance of decent working relationships between employees.
[95] It was misconduct at the serious end of the scale. Although after considering mitigating factors the employer dismissed on notice rather than summarily this does not mean that the conduct, objectively assessed, was not serious misconduct. It was. This matter is being re-determined by the Commission because the plurality on appeal considered that the Commissioner made a serious error of fact in characterising the misconduct as being at the lower end of the scale. As the plurality found, the conduct involved serious threats, not just foul abuse.
[96] I do not accept the submission made by Mr Gosek that his conduct was not serious because the word “dog” was used commonly in the mine. As the plurality on appeal said, “in this context, however, as was acknowledged by Mr Gosek, it was used to describe people that he believed had ratted on their mate”. 64 Neither in the text message nor in the phone calls was usage of the word “dog” a mere conversational put down; it was accusatory and intimidating. That it was accompanied in the text message by a question mark simply made it passive-aggressive, not less offensive. That it was accompanied in the phone calls with foul language underscored its aggressive intent and unsettling effect.
[97] I accept the evidence that foul language had been known to occur in the mine but had not been sanctioned with dismissal. I do not however consider this a bar to finding that there was a valid reason for Mr Gosek’s dismissal. Each incident of misconduct falls on its own facts. This was not just a dismissal for foul language, or a single incident of foul language. It was targeted foul language accompanied by serious threats made to multiple employees over a prolonged period of time.
[98] More relevant to the issue of valid reason is whether the conduct was intentional or involuntary or otherwise explicable. On these matters, Mr Gosek says that he was intoxicated and that he was suffering depression and on a mental health plan. I consider each of these matters more fully when considering whether the dismissal was harsh. Suffice to say that I am not satisfied that either of these factors bar a conclusion that there was a valid reason for dismissal having regard to the nature of the conduct.
[99] Mr Gosek was notified of the reason for the investigation into his conduct and of the reason for his dismissal.
[100] I adopt the findings of Commissioner Riordan on this matter: 65
“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.”
[101] I am satisfied that throughout this investigation process Mr Gosek attended meetings with Illawarra Coal in the presence of his chosen support person.
[102] Mr Gosek was not terminated for unsatisfactory performance. I take into account that Mr Gosek had a positive employment history at Illawarra Coal over 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.
[103] Illawarra Coal is a large employer with detailed and well documented investigation procedures.
[104] Illawarra Coal have dedicated human resources specialists who conducted the investigation into Mr Gosek’s conduct.
[105] The “other matters” in issue largely relate to the mitigating factors asserted by Mr Gosek. They include:
● Mr Gosek was a long serving employee (11 years);
● Mr Gosek’s misconduct occurred from outside the workplace;
● Mr Gosek had, prior to 4 October 2016, an unblemished record;
● Mr Gosek was incapable of carrying out the threats made;
● Mr Gosek was under the influence of alcohol;
● Mr Gosek was being treated for depression and on a mental health plan;
● Mr Gosek apologised to the employees the following day.
[106] Certain of these facts are uncontested, for example Mr Gosek’s length of service, his previously unblemished record and the fact that apologies were made in the days that followed. However, the employer contends that the alleged depression and mental health plan as well as alleged connections between the mental health condition and his reasons for consuming alcohol, and the alleged impact of combining the medication he was taking with the consumption of alcohol were not matters established on the evidence to a sufficiently probative level. In particular, the employer says that evidence concerning these matters was from Mr Gosek himself and not from medical experts or independently verified.
[107] The fact that evidence of a medical condition or opinion concerning that condition is led by a person with the condition rather than by a medical expert does not make that evidence irrelevant. It is capable, depending on the circumstances, of establishing the basis on which certain findings can be made. However, what those findings can and should be is a separate question. Where a medical condition or medical opinion or conclusion is advanced, a degree of caution is required if medical evidence is not supplemented by documentary or oral evidence from a practitioner or expert that allows for testing or cross examination. This is particularly so where the Commission is asked to draw conclusions about medical questions such as causation, treatment and the impact on human behaviour.
[108] In the present matter, I accept that there is sufficient evidence to satisfy the Commission that Mr Gosek was on a mental health plan, was being treated for depression and had the dosage of his prescription medication doubled in the months prior to 4 October 2016. However, other than noting the generally held view that prescription drugs and alcohol do not mix or mix well, I exercise caution in drawing specific conclusions about the impact of the particular prescription medication on Mr Gosek’s behaviour or on human behaviour more generally when mixed with alcohol. These are matters for expert evidence based on the nature of the drug, the level of consumption of alcohol and the physiology of the particular individual.
[109] If a party before the Commission wishes the Commission to draw specific conclusions on such matters (for example, as part of a mitigation submission), it has the opportunity and the obligation to lead probative evidence on those questions. Mr Gosek led evidence in his own right, but no expert evidence. Whilst I accept his evidence on these matters, I exercise appropriate caution about drawing the conclusions he asks the Commission to draw such as the conclusion that his medical condition forced him to drink as an act of self-harm, or that it was the drug/alcohol combination on 4 October 2016 rather than the mere consumption of alcohol which caused or aggravated his misconduct. As the Full Bench said in its appeal decision in this matter: 66
“There was no evidence below of the extent to which (if any) alcohol exacerbates the side effects of this particular drug, or the quantum of alcohol which would need to be consumed and over what period before having effects on a person such as Mr Gosek so as to render conduct involuntary.”
[110] The determination of whether Mr Gosek’s dismissal was harsh, unjust or unreasonable is a discretionary matter based on the facts as found and the application of that evidence against the statutory considerations that must be taken into account. Ultimately, it requires the making of a broad evaluative judgment. 67
[111] I am guided in this exercise by the now classic distillation of the concept of a “harsh, unjust or unreasonable” dismissal which identifies the elements of the composite term, in the judgment of McHugh and Gummow JJ in Byrne and Frew v Australian Airlines Limited: 68
“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.”
[112] In this matter, I have found that a valid reason for dismissal existed. The misconduct was serious involving foul language and threats. Its seriousness was aggravated by the fact that it was not isolated to a single moment of recklessness; it occurred by text and by phone in conversations with multiple employees over a number of hours. I also consider it relevant that Mr Gosek had no just basis on which to accuse the employees of wrongdoing. They had done no wrong; they had not lied to the investigator. His belief they had was not supported by the evidence. It was a belief held, but not one reasonably held. He was not embarking on a righteous cause executed poorly.
[113] Weighing against these factors are significant issues that go to the question of whether the dismissal was otherwise harsh, unjust or unreasonable: the procedural flaws in the company investigation and the mitigating factors.
[114] The flaws in the company investigation were serious. They were summarised by Commissioner Riordan as follows:
“[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 Ms 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.”
[115] I adopt these findings and conclusions as they are clearly established on the evidence.
[116] Whilst they have the effect of making the employer’s decision vulnerable to challenge, the Commission is not reviewing the employer’s decision to dismiss in a narrow sense. Whatever the merit or otherwise of the employer’s final decision making process, the Commission is considering whether, on all the evidence before it, the dismissal was harsh, unjust or unreasonable. The procedural flaws in the investigation largely related to the basis on which the employer drew the conclusions it did. Even if the employer did not have the full set of circumstances before it, the Commission now has. Serious though the flaws were, they did not deny Mr Gosek a chance to explain his conduct, have a support person or be aware of the potential consequences of the investigation. The flaws weigh towards a finding that the dismissal was unjust or harsh but not conclusively so, as all matters concerning the misconduct need to be considered.
[117] There are unquestionably significant and uncontested mitigating factors in support of Mr Gosek’s claim that his dismissal was harsh: his length of service, his previously unblemished record and his apologies (which were timely, sincere and, to a varying degree, accepted). They must each be given proper weight and standing. Length of service is not just relevant for length alone but coupled with an unblemished record over a long period of service it is a consideration of some force. That said, it is well established that long service or a good record alone or even in combination cannot insulate an employee from dismissal if misconduct is so serious as to warrant dismissal in all of the circumstances. Mitigating factors do not automatically outweigh conduct in breach of policy or act to sufficiently transform a dismissal for a valid reason into one that can be characterised, at law, as harsh. 69
[118] I do not consider the fact that the misconduct occurred from a premises outside the workplace to be a mitigating factor. Whether at the workplace or not, Mr Gosek was concerning himself with a work related matter – texting and speaking to fellow employees about their conduct during a workplace investigation which had been conducted by their employer into a workplace bullying complaint.
[119] Mr Gosek’s mental health condition is a factor of some significance, despite the fact that it was not known to the employer. An employee with medically diagnosed depression and on a treatment plan is clearly more vulnerable to fluctuations in behaviour than an employee whose mental health is stable. That said, while this factor may explain in part the depth of anger and frustration that led Mr Gosek to lash out at fellow employees on 4 October 2016 it does not excuse it. Where the conduct of an employee, even one with a mental health diagnosis, places other employees in a position where they feel unsafe or threatened in their work environment an employer would be derelict in its duty to stand idly by. This does not however mean that an employer should reach a conclusion that dismissal is the correct response. Where an employer is unaware of an employee’s genuine and valid mental health condition that fact may only emerge through an investigation; hence the importance of a credible investigation of instances of misconduct. I consider Mr Gosek’s mental health condition, to the extent it was established on the evidence, to be a mitigating factor of some considerable weight.
[120] Mr Gosek also advances the proposition that his intoxication was a significant mitigating factor. I am not so persuaded. Firstly, his intoxication occurred over a number of hours. The intimidating text messages were sent only after he had two or three drinks. The intimidation commenced when he was angry, not when he was intoxicated. He was not so intoxicated as to be incapable of dialing phone numbers, returning calls and carrying on conversations. Secondly, while alcohol consumed loosened his inhibitions, the foul language, false accusations and threats made reflected in part views he held before he started drinking: that employees had lied to an investigation – an accusation that was false. Thirdly, Mr Gosek chose to drink and drink to excess. He voluntarily put himself in harm’s way and was the sole contributor to his own intoxication. Nor am I satisfied that the evidence before the Commission renders it permissible to safely make a finding that his drinking was an act of self harm connected to his mental health. I do not discount this possibility but it was an assertion not established on the balance of probabilities.
[121] Further, as the Full Bench said in the appeal decision, whilst the consumption of alcohol by Mr Gosek is not irrelevant “those who consume alcohol must take responsibility for their actions”. 70
[122] Nor do I consider the fact that Mr Gosek could not, under union rules, unilaterally carry out the threats to remove the employees from the union to be a mitigating factor. Even if Mr Gosek could not alone remove an individual union member, he could as Lodge President ‘go after them’ which was the content of at least one of the threats.
[123] In assessing whether a conduct based dismissal is “harsh” in circumstances where mitigating factors are established I am guided by the following approach well established by the Commission in B, C and D v Australian Postal Corporation: 71
“[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;
against
(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.
[59] It is in that weighing that the Commission gives effect to a ‘fair go all round’.”
[124] On the facts before the Commission, a primary consideration is the issue of proportionality. Was Mr Gosek’s dismissal for a valid reason so disproportionate having regard to the mitigating factors that it can objectively be said to be harsh?
[125] Having conducted the evaluative judgement that the discretion requires, and based on the findings I have made about the evidence as a whole before the Commission, I do not, on balance, consider the dismissal to have been harsh, unjust or unreasonable. In particular, I do not consider that the mitigating circumstances are so compelling as to render dismissal for what were serious acts of misconduct to be so disproportionate as to be harsh. Mental illness may explain the misconduct in part, but the consumption of alcohol does not excuse it even if it also partially explains the behaviour. The misconduct was at the higher end of the scale – involving threats specifically directed to individuals and not simply foul language. It was destructive of working relationships and inconsistent with the policies and values espoused by the employer. It was unwelcome. At the time, and to varying degrees subsequently, it upset and offended the recipients. Its workplace impact was ameliorated by the timely and contrite apologies and the spirit in which those apologies were, for the most part, received and accepted by some of the employees. The other mitigating factors relating to length of service and an unblemished prior record are weighty but on balance do not displace a sound, defensible and well-founded reason for dismissal.
[126] For these reasons, I would dismiss the application.
DEPUTY PRESIDENT
Appearances:
M. Follett for the Appellant.
C. Howell for the Respondent.
Hearing details:
2018.
Melbourne and Sydney, via video link:
13 March.
Printed by authority of the Commonwealth Government Printer
<PR601567>
1 Transcript PN 578 of 13 March 2018
2 Appeal Book page 413 at [52]
3 Submissions on behalf of Mr Gosek 9 March 2018
5 Transcript PN 619 of 13 March 2018
6 Submissions on behalf of Mr Gosek Appeal Book page 373 at [12]
7 Appeal Book page 77 at Transcript PN 330
8 Ibid at page 79 at Transcript PN 355
9 See Section 69 of the Evidence Act 1995
10 Appeal Book page 88 at Transcript PN 461
11 Ibid at page 453 at [21] and page 1084 at Annexure JT-29
12 Ibid
13 Ibid at page 454
14 Transcript PN 579 of 13 March 2018
15 Ibid PN 592
16 Ibid PN 593
17 Ibid PN 594
18 Submissions of Illawarra Coal Appeal Book page 428 at [47]
19 Transcript PN 560 of 22 June 2017. The reference to 42 years is a reference to his age. He had been employed by Illawarra Coal for 11 years.
20 Ibid PN 792
21 Appeal Book page 1007
22 Ibid at page 1021
23 Ibid at page 1041
24 Ibid at page 1049
25 Ibid at page 479 at [34]-[39]
26 Ibid at page 1010
27 Ibid at page 1021
28 Ibid at pages 1041 and 1044
29 Ibid at page 1057
30 Ibid at pages 483 at [57]
31 Ibid at pages 483 and pages 613-615
32 Ibid at page 525
33 Ibid at page 1137
34 Ibid at page 525
35 Ibid at page 607
36 [2018] FWCFB 749 at [83]
37 Ibid at [84]
38 Ibid at [83]
39 Submissions on behalf of Mr Gosek 9 March 2018 at [29] and referencing Appeal Book page 525
40 Ibid and referencing Appeal Book page 526
41 Ibid and referencing Appeal Book page 525
42 Ibid and referencing Appeal Book page 526
43 Ibid and referencing Appeal Book page 540 at [43]
45 Appeal Book page 1033
46 Ibid at page 1156
47 Ibid at page 1041
48 Ibid at page 1045
49 Ibid at page 1049
50 Ibid at page 1057
51 Transcript PN 2315 of 3 August 2017
52 Ibid PN 2442-2443
53 Ibid PN 2444-2446
54 Appeal Book page 469 at [8]
55 Ibid
56 Ibid
57 Ibid at pages 470 and 450 at [16.24]
60 [2018] FWCFB 749 at [104]
61 Submissions on behalf of Mr Gosek 9 March 2018 and Illawarra Coal 9 March 2018 and Oral submissions 13 March 2018
62 Appeal Book pages 531-532 at Annexure MG-12
63 Appeal Book pages 893-952 at Annexure JT-04
64 [2018] FWCFB 749 at [83]
65 [2017] FWC 4574 at [75]
66 [2018] FWCFB 749 at [97]
67 Toms v Harbour City Ferries Pty Ltd [2015] FCAFC 35 at [86]
68 (1995) 185 CLR 410 at 465
69 For example, Dawson v Qantas Airways Limited [2017] FWCFB 1712 at [48]-[49]
70 [2018] FWCFB 749 at [98]
71 B, C and D v Australia Postal Corporation [2013] FWCFB 6191, (2013) 238 IR 1; DP World Sydney Limited v Lambley [2013] FWCFB 9230
Printed by authority of the Commonwealth Government Printer