A Fair Work Commission ruling which found the expression “f***ing dog c***” was reasonable language to use at a coal mine has been overturned, on review, after a full bench review.
A full bench majority has decided Fair Work Commissioner Bernie Riordan “mischaracterised” the behaviour of a South32 worker who he ordered have his job reinstated late last year.
CFMEU lodge president Matthew Gosek allegedly verbally abused and physically threatened his co-workers, at the miner’s Dendrobium mine in the Illawarra. It was alleged he threatened to kick several of the mine’s other workers out of the union, and hunt them down, because they ‘sold out’ a co-worker.
Over phone calls and text messages in a four- to five-hour span, he allegedly challenged them to physical altercations, and labelled them “f**ing dog”, “c**t”, and “dog c**t”. Gosek reportedly apologised for his actions the following day, saying he was battling depression and alcohol abuse.
He was nonetheless sacked by South32 for his actions.
But after Gosek offered to step down as a union rep, Commissioner Riordan ordered the company give him back his job last November.
Riordan at that time conceded Gosek’s conduct breached the mine’s anti-bullying policy, but that it was not a breach of contract, and thus his sacking was a harsh response.
He said swearing at a mine site was “unfortunate but very commonplace”.
“In my experience, the expression f**ing c**t is commonly used across all walks of life in society,” Riordan said. “Inserting the word ‘dog’ into the phrase, does not necessarily make the phrase anymore offensive or intimidatory.”
The decision was appealed by South32, and overturned this week by Fair Work Commission deputy presidents Anne Gooley and Peter Anderson.
“We accept [South32’s position] that by focusing on the language and not the totality of the conduct the Commissioner downplayed the character of the conduct,” the ruling states.
“The problem was not that Mr Gosek swore at his work mates. The conduct involved an expletive-filled tirade which included threats directed at employees because they participated in an investigation.
“While the evidence supported a finding that the term ‘dog’ was used in other contexts in this workplace, in this context however, as was acknowledged by Mr Gosek, it was used to describe people that he believed had ratted on their mate.
“Mr Gosek believed that they had lied.”
The ruling also determined Commissioner Riordan’s earlier ruling had “further downplayed the threat of physical violence”.