Commissioner Bernie Riordan found Mr Gosek's conduct breached the mine's bullying and harassment policy and was "unwelcome, humiliating, intimidating or offensive".

But despite finding the abuse was a valid reason for dismissal he concluded it was not a breach of contract and that the dismissal was harsh.

'Coalmine - not a convent'

The commissioner considered that Mr Gosek was under a "cocktail" of alcohol and anti-depressants at the time of the calls "which transformed a normally rational and considered human being into an entirely different human being".

He also considered the use of foul language in the workplace is "unfortunate but very commonplace".

"In my experience the expression f___ing c__t, is commonly used across all walks of life in society." Bob Pearce

"In my experience the expression f--king c--t, is commonly used across all walks of life in society.

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


When South32 argued the employees' family members overheard Mr Gosek's messages and were distressed, Mr Riordan noted it appeared the families were also subject to inappropriate language from their husbands or fathers.

He pointed out Mr Gosek's colleagues "work in a coalmine – not a convent".

"The use of inappropriate language in this workplace is commonplace and has been condoned by Illawarra Coal for at least 5 years."

To set a precedent with Mr Gosek, without warning, would be unfair, he said.

'Talking through his hat'

The commissioner rejected South32's claims the employees, of whom seven did not give direct evidence, would be subject to retaliatory conduct because Mr Gosek did not have the power to terminate their membership.

The mine also "has no right to interfere in the operation or conduct of the CFMEU", he said.

He said Mr Gosek's challenge to fight two employees, one who was twice his size and welcomed the invitation, was Mr Gosek "talking through his hat" due to his drug-alcohol cocktail.


Commissioner Riordan said Mr Gosek had "bared his soul for all to see that he has been suffering from severe depression".

He said South32 failed to give proper weight to his mitigating circumstances, including that the side effects of Mr Gosek's strong medication were typified by his "one-off" behaviour.

He ordered South32 reinstate Mr Gosek within seven days after accepting his offer to resign as CFMEU lodge president so he was not in a position to "overreact" in the future.

He also ordered the mining company pay Mr Gosek his lost wages minus a 25 per cent penalty due to his "poor conduct".

The decision follows allegations of abuse and harassment by CFMEU members at Glencore's Oaky North coal mine, including calling those who cross a picket line "c---", "maggot", "grub", "dog", f---wit" and "scab".

'Out of step with modern workplace'

Industrial relations barrister Stuart Wood QC responded with shock to the decision, describing Mr Gosek's abuse of his colleagues as a "gross breach of freedom of association".

"It seems completely out of step with other decisions and with behaviour expected in modern workplaces," he said.


"It's one rule for a union delegate and a different rule for everyone else."

CFMEU NSW district vice president Bob Timbs called the decision a "great outcome" and said "all but one of the employees has accepted Matt's sincere apologies and moved forward".

A South32 spokesman said the company was "considering our position".

"We do not tolerate any form of harassment or bullying and our values support a culture where we treat people fairly and respectfully."