Fair Work decision to sack unionist for swearing ‘unfair’

The Australian, February 27, 2018

A controversial Fair Work Commission ruling that a CFMEU delegate who abused and threatened his colleagues was unfairly dismissed has been overturned.

In his decision upholding the unfair dismissal application, Commissioner Bernie Riordan said the expression “f..king c..t” was commonly used across all walks of life and the sacked employee worked in a mine where inappropriate language had been condoned for five years.

But a full bench majority found Commissioner Riordan had downplayed the seriousness of Matthew Gosek’s conduct and wrongly characterised it as being at the lower end of the scale.

Mr Gosek, a South32 electrical technician and CFMEU lodge president, was unhappy that allegations by a union member had not been upheld by an investigation. After drinking at a pub, he abused co-workers who took part in the investigation, calling them “f..king dog, c..t and dog c..t’’. He also made threats, telling one he would hunt them down and destroy them.

After apologising the next day by text message, he told one worker he was battling alcohol abuse and depression.

Commissioner Riordan found while there was a valid reason for sacking Mr Gosek, there was a plethora of reasons why the dismissal was harsh, unjust and unreasonable. He said the incident was a “one-off”: that Mr Gosek was entitled to a fair go; had bared his soul about his severe depression and was taking strong medication which had a long list of adverse side effects.

“In my experience the expression f..king c..t is commonly used across all walks of life in society,’’ he said.

“Inserting the word dog into the phrase, does not necessarily make the phrase anymore offensive or intimidatory.”

But the full bench majority said Commissioner Riordan downplayed the conduct by focusing on the language and not the totality of the behaviour.

“The problem was not that Mr Gosek swore at his work mates,’’ they said. “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.”

The Federal Court yesterday criticised the CFMEU’s “deplorable” record of law breaking, imposing $105,000 in penalties on the union and a shop steward for trying to impose a “no ticket no start” policy on a Melbourne building site.

Federal Court judge Richard Tracey reiterated previous court findings that the CFMEU showed a repeated disregard for the law, spending millions of dollars of union funds on penalties when the money could have been used to benefit members.

The Australian Building and Construction Commission provided evidence that the CFMEU contravened federal workplace laws on 135 separate occasions over 15 years. “The CFMEU has accumulated a deplorable record of contravening civil remedy provisions of the Act and its predecessors,’’ Justice Tracey said.

The ABCC had accused Melbourne painting and decorating company Arteam and its director Michael Hanna of joining forces with the CFMEU to pressure a cash-strapped worker to join the union and immediately pay hundreds of dollars in union dues.