ABC Illawarra, Posted Fri 10.11.17
A miner who was sacked for using foul and abusive language at work is set to be reinstated after a ruling by the Fair Work Commission.
But mining company South32 is appealing the ruling to reinstate the sacked union delegate who threatened colleagues and called them a “f***ing dog” and “dog c***”.
During the unfair dismissal case, commissioner Bernie Riordan said the use of foul language in the workplace was “unfortunate but very commonplace”, adding that those involved “work in a coalmine, not a convent”.
The commission found Matthew Kosek, lodge president for the Construction, Forestry, Mining and Energy Union (CFMEU) at the Dendrobium Mine, in the Illawarra region of New South Wales, was under the influence of prescription medication and alcohol at the time of the incident.
Mr Kosek addressed seven colleagues and used foul and abusive language, calling them a “f***ing dog”, “c***” and “dog c***”.
Mr Riordan ordered that Mr Kosek be reinstated and receive partial back pay, adding that the use of inappropriate language had been condoned by the mine’s owner Illawarra Coal “for at least five years”.
Illawarra Coal’s parent company South32 told the ABC it had filed an appeal against the decision, and a hearing had been set down for November 30.
Context of language important, barrister says
South32 chief executive Graham Kerr addressed employees in a video this week, saying any form of harassment or bullying would not be tolerated.
“We are working hard to create an inclusive workplace where everyone feels comfortable and safe at work and can speak up without fear,” Mr Kerr said.
“We will not and do not tolerate unacceptable behaviour.”
Industrial relations barrister Bruce Taylor said he was not surprised by the Fair Work umpire’s decision, adding that the context of such language was important.
He cited a recent court decision to throw out offensive language charges when a group of marriage equality supporters declared “f*** Fred Nile”.
“The fact that people swearing in public who’ve been charged by the police using the F-word can be dismissed by a magistrate, I think people are far more tolerant of general swear words,” Mr Taylor said.
“That is not to say that there isn’t a time and a place.
“In a coal mine it may be okay to use swear words. In a general workplace I doubt very much and if it were, a warning would be given that it’s not to happen again.”
Mixed opinion on ruling’s potential implications
Mr Taylor said he did not expect the ruling to have wider implications.
“This fellow was drinking, he’d been under a degree of stress and he did apologise to the staff. I think people would forgive and forget and move on,” he said.
“But that would not always be the case, and I’m certainly not advocating for a degree of tolerance of bullying or swearing at the workplace.”
But Australian Human Resources Institute chairman Peter Wilson said the commission’s decision was “alarming”, and he disagreed that such language was commonplace in work environments.
“Employees have a duty of care in the workplace not to use words like that, and employers have to safeguard it,” Mr Wilson said.
“Commissioner Riordan’s judgement really cut across that and established a level of acceptability that I think is quite inappropriate.”