Tuesday, 2 December 2014

High Court: ‘SCABS’ Sign Protestor Lawfully Dismissed

In a ruling that should bring comfort to employers who operate in highly unionised industries, the High Court has upheld a Full Federal Court decision that found an employee who behaved in an offensive manner at a union protest was dismissed lawfully.

The Fair Work Act (the Act) contains provisions which, amongst other things, prohibit an employer taking ‘adverse action’ (eg. disciplinary action) against an employee because they have engaged in ‘industrial activities.’ Contravention of these provisions may result in fines of up to $51,000 (for corporations) and $10,200 (for individuals).

In this case, the Construction, Forestry, Mining and Energy Union (CFMEU) was engaging in protected industrial action in the form of a stop-work protest at a mine operated by BHP Coal Pty Ltd (BHP) in Queensland’s Bowen Basin. Mr Henk Doevendans, an employee of BHP and member of the CFMEU, participated in the protest and held up and repeatedly waved a sign supplied to him by the union that read: “No Principles SCABS No guts”. The sign was directed at passing motorists and non-striking employees who later reported to management they felt intimidated by Mr Doevendans’s conduct.

Following an investigation into the incident and a ‘show cause’ process, BHP dismissed Mr Doevendans for misconduct.

The CFMEU brought a General Protections claim in the Federal Court on behalf of Mr Doevendans, alleging he was dismissed because he was a member of the CFMEU and engaged in lawful industrial action.

Federal Court

Jessup J accepted the testimony of the General Manager of the mine, Mr Brick, that the reason for the dismissal was the nature of Mr Doevendans’s conduct. In evidence, he maintained the sign was ‘inappropriate, offensive, humiliating, harassing, intimidating and flagrantly in violation of BHP Coal’s workplace conduct policy (that required courtesy and respect be shown to fellow employees)’, that Mr Brick was ‘well aware’ of the policy and that he demonstrated ‘arrogance’ and a lack of contrition when confronted about the incident. Mr Doevendans’s conduct was also ‘antagonistic’ to the culture Mr Brick was endeavouring to develop at the mine.

Nevertheless, Jessup J found BHP dismissed Mr Doevendans for participating in industrial activities and for advancing the views of the CFMEU, which in his view included brandishing a ‘conspicuously offensive’ message castigating other CFMEU members who decided not to participate in industrial action.

The Court ordered that Mr Doevendans be reinstated and fined the company.

BHP appealed to the Full Federal Court.

Full Federal Court

The Full Federal Court overturned Justice Jessup’s decision and orders. For Justice Flick, the trial Judge did not give sufficient to the General Manager’s reasons for dismissing Mr Doevendans which not only included waving the sign but also his arrogance and antagonistic conduct after the incident. Justice Dowsett agreed Mr Doevendan’s engagement in industrial activity ‘played no part’ in the decision to dismiss him.

The CFMEU appealed to the High Court.

High Court

In a 3:2 decision, the High Court upheld the Full Federal Court’s decision. French CJ and Kiefel J noted the answer to the issue as to whether unlawful adverse action was taken was to be found in the ‘reasoning [the general manager] actually employed.’ The Manager’s actual reasons related to ‘his concern that Mr Doevendans could not or would not comply with standards of behaviour’ expected of employees at the mine. Their Honours also believed, in determining whether the flag waving was a lawful industrial activity, the primary Judge erred by ‘wrongly add[ing] a further requirement…namely that the employer dissociate its adverse action completely from any industrial activity’. Gageler J agreed the adverse action provision had not been contravened here as the flag waving did not form part of the ‘operative and immediate reasons’ for Mr Doevendans’s dismissal.

What this means for you

The High Court’s decision confirms an employee will not be immune from disciplinary action in response to unreasonable conduct that occurs as part of an industrial activity or exercise of a workplace right. This should embolden employers to apply their policies and processes to employees even if they are a union member, delegate or activist.

However, employers must understand they bear the onus of proving any adverse action taken against an employee was not for a prohibited reason. This means it is vital all disciplinary processes are fully and accurately documented. Employers should also carefully consider who will be involved in the decision-making process as their evidence will be subject to heavy judicial scrutiny and will often be critical in defending claims.

For assistance with managing employees who may be eligible to bring an adverse claim, please contact HR Legal.

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41 (16 October 2014)

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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