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When can misconduct be excused?

Regardless of a worker’s conduct, HR must carefully assess mitigating circumstances before dismissing.

In a finely balanced case, the Fair Work Commission (FWC) recently reinstated a worker who drunkenly and threateningly referred to his colleagues as “f***ing dogs” and “dog c**ts”. Despite its finding that the worker’s conduct was otherwise a valid reason for dismissal, the FWC held that the termination was “harsh” due to extenuating circumstances. This ruling demands the question: when, if ever, can misconduct be excused?

The recent decision in Illawarra Coal Holdings Pty Ltd T/A South32 v Matthew Gosek [2018] FWCFB 1829 can certainly be described as controversial, if only because of a history of successive successful appeals – each one overturning the decision of its predecessor.

Ultimately, the full bench of the FWC has ordered that Gosek be reinstated to his former position, finally drawing this saga to a close.

Barrage of abuse

In this case, the FWC heard that Gosek sent text messages to several co-workers saying only “Dog?” while under the influence of a pernicious combination of antidepressant medication and alcohol. Over the ensuing hours, he followed up on these messages with a barrage of abusive phone calls to his colleagues, ranging between two and 48 minutes in duration.

During these calls, Gosek variously referred to his colleagues as “dog c**ts” and “f***ing dogs,” made intimidating threats that they “will pay” and stated that he was “going to take [them] down”.

The FWC heard evidence that the families of some of Gosek’s colleagues were also subject to intimidation during these calls. For example, one of Gosek’s colleagues had to explain to his 10-year-old son the meaning of the vulgar language used in the phone calls.

Perhaps understandably, Gosek’s employer dismissed him for this conduct. Gosek subsequently brought an unfair dismissal application in the FWC alleging the dismissal was harsh, unjust or unreasonable for the purposes of the Fair Work Act 2009. In making its decision, the FWC was required to consider two questions. Firstly, was there a valid reason for Gosek’s dismissal? Secondly, was the decision nevertheless ‘harsh, unjust or unreasonable’ in the circumstances?

Valid reason

Subsection 387(a) of the Fair Work Act stipulates that one of the factors the FWC must consider when determining if a dismissal is harsh, unjust or unreasonable is whether there was a valid reason for terminating the worker’s employment. In making this assessment, the FWC had to distinguish between factors relevant and irrelevant to the validity of the dismissal.

Gosek’s treatment for severe depression, his alcohol consumption prior to the incident, and a recent family bereavement were taken to be relevant considerations. Nevertheless, these factors were not considered to be sufficient to outweigh the seriousness of Gosek’s conduct. For this reason, the FWC concluded there was a valid reason for Gosek’s dismissal.

The question therefore turned to “any other matters that the FWC considers relevant” to determine if the otherwise valid dismissal was nevertheless harsh in the circumstances.

Mitigating circumstances  

Ultimately, the FWC concluded Gosek’s dismissal was harsh in the circumstances and ordered that he be reinstated. Notably, the FWC placed a particular emphasis on the fact that Gosek was dealing with the loss of a close family member, and receiving treatment and medication for severe depression at the time the incident occurred.

The FWC also noted the impact of Gosek’s alcohol consumption on the effectiveness of the antidepressant medication and observed that his otherwise unblemished record, consistent politeness and prompt apology the following day demonstrated that the conduct was “out of character”. Therefore, the FWC concluded, his behaviour was an aberration and his dismissal was disproportionate to his misconduct.

Other factors supporting the conclusion the dismissal was harsh included the impact of Gosek’s mental health issues on his family, which instigated his excessive drinking; issues Gosek had faced in adjusting to an increase in medication; and that Gosek was “run down and exhausted”, sleeping for as much as 14 hours a day in order to be left alone.

While these extenuating circumstances tipped the balance in Gosek’s favour, the FWC was careful not to condone Gosek’s behaviour. Certainly, this decision should not be interpreted as giving a carte-blanche to employees to behave poorly, provided they apologise the next day.

John Wilson is a managing legal director at Bradley Allen Love Lawyers.  This article was originally published in the October 2018 edition of HRM Magazine.

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Robert Compton. FAHRI
Robert Compton. FAHRI

Interesting case. A very good reason to provide counseling to bring out such underlying causes of behavior. If the behavior continues post counseling the organization may be on safer turf.


I think it’s wrong to ask ‘when can misconduct be excused’, as per the headline. It can never be excused. It can be understood and can be managed. Extenuating circumstances can be taken into account. But it can never excused.

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