2014 HIGH COURT CASE ON ADVERSE ACTION
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Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd  HCA 41
In dismissing an appeal from the Full Court of the Federal Court, a majority of the High Court (3:2) has held that the termination of an employee (Mr Doevendans) was not due to his involvement in industrial activities. Therefore, his dismissal was not a form of adverse action that is prohibited under s 346(b) of the Fair Work Act 2009 (Cth).
Mr Doevendans was an employee of BHP Coal Pty Ltd at Saraji Mine. Several months prior to his termination, Mr Doevendans took part in a protest organised by the Construction, Forestry, Mining and Energy Union (CFMEU), of which he was a member. At that protest, he held and waved a sign that read ‘No principles SCABS No guts’, which had been supplied by the CFMEU. Mr Brick (the general manager of the Saraji Mine) then terminated Mr Doevendan’s employment. At first instance, Mr Brick testified that his reasons for doing so were: (1) ‘scab’ (an expression of contempt of workers who do not take part in industrial action) is an inappropriate and intimidating term and its use is in violation of BHP Coal’s workplace conduct policy, which Mr Doevendans was aware of; (2) Mr Doevendans showed no contrition or acknowledgement that his behaviour was inappropriate and was arrogant when confronted with the objections to his conduct; (3) Mr Brick regarded the conduct as ‘antagonistic’ to the workplace culture that he was trying to foster at the mine. Mr Brick argued that Mr Doevendans’ active involvement in the CFMEU did not influence his decision.
Section s 346(b) of the Fair Work Act 2009 (Cth) prohibits a person from taking adverse action against another person because that person engages in industrial activity. ‘Industrial activity’ includes participating in a lawful activity that is organised by the industrial association (s 347(b)(iii)) and representation or advancement of the views or interests of an industrial association (s 347(b)(v)). Furthermore, as per s 342(1), Item 1 (a), dismissal of an employee is a form of adverse action. Where there are multiple reasons for a person taking adverse action, that adverse action will be prohibited if any one of those reasons is because of involvement in industrial activities (ss 360, 346(b)). Where it is alleged that a person took action for a prohibited reason, that person bears the burden of proof to demonstrate that they did not take action for that reason (s 361).
The primary judge of the Federal Court accepted that Mr Brick’s decision to dismiss Mr Doevendans was not impulsive, but was a considered one that was developed over time. Ultimately, however, his Honour held that Mr Doevendans’s dismissal was unlawful under the Fair Work Act 2009 (Cth) as it was done because of Mr Doevendans’ involvement in industrial activity. On appeal, a majority of the Full Court of the Federal Court disagreed and held that this conclusion was not open to the primary judge because he had accepted Mr Brick’s testimony that Mr Doevendans’ involvement in the industrial activity did not play an active role in his decision.
The High Court’s Decision
Using the case of Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] (2012) 248 CLR 500 (‘Bendigo’), a majority of the High Court reasoned that s 346 involves an inquiry into the actual reasons that motivated a person to take adverse action. It is irrelevant whether the matter before the High Court involved things done in the context of protected industrial action. Participation in industrial activity, for example, must be an actual reason for an employee’s dismissal. Accordingly, the majority upheld the decision of the Full Court of the Federal Court in affirming that none of Mr Brick’s reasons for terminating Mr Doevendans’ employment were prohibited reasons. It held that Mr Doevendans was not dismissed because he participated in the lawful protest organised by the CFMEU, nor was he dismissed for representing or advancing the views or interests of the CFMEU by carrying the sign. Since Mr Brick’s decision to dismiss Mr Doevendans was not directly (actually) for a prohibited reason, the majority maintained that the termination was lawful and dismissed the appeal.
Case note by Sebastian De Brennan, Barrister, firstname.lastname@example.org