High Court: OK to sack for 'Scabs' sign

October 2014

The High Court has upheld BHP's sacking of an employee for waving a sign accusing other employees of being 'scabs'. The decision strongly reinforces the High Court's 2012 ruling in Barclay v Bendigo TAFE that an employee can be disciplined for conduct closely associated with industrial activity, so long as the activity is not itself a reason for discipline.
 

Facts

Mr Doevendans worked at the Saraji mine in Queensland. He was also the CFMEU Lodge Vice-President. There was a protected strike at the mine. The strikers, with others, held a peaceful and lawful protest outside the mine entrance. Mr Doevendans repeatedly waved a sign prepared by the CFMEU saying "No principles SCABS No guts". BHP dismissed him on the basis the sign insulted other workers. It said the participation in the protest itself played "no part" in the decision. The CFMEU argued that BHP had taken adverse action for various prohibited reasons including that, in holding the sign, Mr Doevendans was:

  • participating in a lawful activity organised or promoted by the CFMEU; and/or
  • representing or advancing the views, claims or interests of the CFMEU.

Decision at first instance

Justice Jessup found the sign was against BHP's policy, and accepted its evidence that Mr Doevendans had not been dismissed for being at the protest itself. However, his Honour found the conduct in waving the sign could not be divorced from participation in the protest. His Honour also found that, in waving the sign, Mr Doevendans was advancing the views of the CFMEU. His Honour decided BHP had breached the FW Act for both relevant reasons claimed by the CFMEU, and ordered reinstatement and $7,500 in compensation.

Decision of the Full Federal Court

By 2-1 majority, a Full Federal Court overturned the initial decision. All three judges held that the waving the sign could be divorced from participation in the protest itself (in that presence at the protest was different from inappropriate behaviour during the protest). The majority also ruled that the protection given to representing the views of a union does not extend to doing so in an inappropriate or abusive way. However, Justice Kenny, in the minority, expressed the opinion that it did not matter whether the union's views were reasonable or offensive, and that it was not possible to divorce the employee's actions in the waving the sign from a conclusion he was representing the union's views.

High Court decision

By 3-2 majority, the High Court upheld BHP's action in dismissing Mr Doevendans. The majority found that, to be unlawful, it was not enough that conduct simply be connected with industrial activities protected by the FW Act. Instead, the majority held that the waving of the inappropriate sign could be divorced from participation in the protest itself, and that the protection given to representing the views of a union did not extend to doing so in an offensive way.
In contrast, the minority, Justices Hayne and Crennan, thought that the waving of the sign could not be divorced from the circumstances in which it was used and that Mr Doevendans was entitled to express the views of the union, even if offensive, provided his conduct was not otherwise unlawful.

What does this mean in practice?

The decision strongly reinforces the High Court's 2012 ruling in Barclay that there is no prohibition on taking adverse action against an employee for conduct closely associated with industrial activity, so long as the activity is not itself the reason for the adverse action.

The decision makes it clear that the "adverse action" provisions in the FW Act protect employees against discrimination, but do not give union members and delegates a cloak of immunity for conduct undertaken in their union capacity. Instead, a union member or delegate can still be disciplined for inappropriate behaviour, provided they are not treated less favourably than an employee who is not associated with a union.

The decision is important for HR Managers who might be called upon to deal with misconduct by employees acting as a union members or delegates. It stresses the need for precise identification of the actual reason for any discipline. Even then, it remains critical to ensure that any discipline is proportionate, consistent and fair. Otherwise, an employer is likely to face an unfair dismissal claim or other action to dispute the discipline.

The decision also reinforces the need for managers facing an adverse action claim to be prepared to give credible evidence as to their actual reasons for the decision. This is necessary to refute the reverse onus of proof which assumes that adverse action has been taken for a prohibited reason unless the employer is able to establish the contrary.