An Illawarra Coal worker who won an unfair dismissal case over abusive text messages sent while drunk has forced the company to give him the annual leave he lost from the 15 months he was out of work.
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In a Fair Work Commission hearing on May 2, it was ruled that Illawarra Coal had to credit Matthew Gosek with the annual leave and long service leave he would have accrued in the period between his dismissal on January 31, 2017, and his reinstatement in April 2018.
Mr Gosek was dismissed over comments he made to other employees after an investigation into a claim of bullying leveled by a worker against a mine deputy.
As CFMEU lodge president at the Dendrobium mine. Mr Gosek represented the worker.
On October 4, 2016, Mr Gosek was off work and drinking at the Dapto Hotel.
Unhappy with the outcome of the investigation, he sent text messages to eight employees, using language like "f..king dog" and "dog c..t".
It was also alleged he challenged two employees to a fight.
The next day, Mr Gosek sent out an apology via text message and called each employee a day after that to apologise again.
After hearing complaints, then Operations Manager Joel Plavecky started an investigation.
Despite a final draft of the investigation report never being compiled, Mr Plavecky sent Mr Gosek a letter stating his conduct was "viewed as intimidating and consistent with harassment" and that he would be sacked.
In response Mr Gosek launched an unfair dismissal case, and a ruling was handed down in November 2017 by Commissioner Riordan.
In that decision, the Commissioner noted Mr Gosek was "unknowingly" under the influence of a prescribed drug to treat depression that, combined with alcohol, "transformed a normally rational and considered human being into an entirely different human being".
The Commissioner found there was a valid reason for his sacking, however that there was also "a plethora of reasons why" it was "harsh, unjust or unreasonable".
This includes that other Illawarra Coal employees who breached the same policy as Mr Gosek were not disciplined and that the use of "inappropriate language .. has been condoned by Illawarra Coal for at least five years".
The commissioner also found Mr Plavecky had "a fixed view regarding his preferred outcome".
The ruling found he should be reinstated and provided compensation for lost wages "with a 25 per cent penalty for misconduct".
Illawarra Coal appealed the decision in February, but that was unsuccessful, though the commission did strike out the compensation for lost wages.
