In a significant decision, the High Court of Australia has upheld the Full Court of the Federal Court’s decision that BHP Coal Pty Ltd did not take adverse action for a prohibited reason, when it dismissed an employee who repeatedly held and waved a sign with the words “No principles SCABS No guts,” during a protest outside BHP’s Saraji Mine.

Background

During enterprise agreement negotiations in February 2012, BHP employees at mine sites in the Bowen Basin took protected industrial action in the form of stoppages of work.

During the industrial action, a protest was organised by the CFMEU at the entrance to the Saraji Mine. On a number of occasions during the protest, Henk Doevendans, BHP employee and CFMEU member, was observed holding and waving a sign that read “No Principles SCABS No Guts” (Scabs Sign) at vehicles entering and leaving the Saraji Mine.

BHP conducted an investigation into Mr Doevendans’ alleged conduct, which established that he had held and waved the Scabs Sign on three occasions during the protest. BHP subsequently decided to terminate Mr Doevendans’ employment.

The CFMEU brought a general protections application in the Federal Court, alleging that the dismissal amounted to adverse action, which was taken for the prohibited reasons that Mr Doevendans:

  • had participated in protected industrial action;
  • was a member and/or an officer of the CFMEU;
  • had been participating in a lawful activity organised by an industrial association; and
  • had been representing or advancing the views, claims and interests of an industrial association.

At hearing, the General Manager of the Saraji Mine gave evidence that the only considerations that were in his mind when deciding to terminate Mr Doevendans’ employment were:

  • Mr Doevendans held and waved the Scabs Sign on more than one occasion;
  • there were a number of signs available in the protest area which Mr Doevendans could have chosen to display, but he deliberately and repeatedly held and waved the Scabs Sign;
  • Mr Doevendans admitted to the allegations about his conduct;
  • Mr Doevendans acknowledged that he knew his conduct was inappropriate and contrary to BHP’s Charter Values and Workplace Conduct Policy; and
  • Mr Doevendans refused to accept that he had done anything wrong.

Originally, Justice Jessup of the Federal Court held that BHP had dismissed Mr Doevendans for having participated in an industrial activity organised by an industrial organisation, and for having represented or advanced the views, claims or interests of the CFMEU. His Honour ordered that Mr Doevendans be reinstated to his employment and imposed a penalty on BHP. On appeal, this decision was overturned by the Full Court of the Federal Court.

In 2014, the CFMEU was granted special leave to appeal the Full Federal Court’s decision to the High Court of Australia, with the High Court’s decision handed down on 17 October 2014.1

High Court’s decision

The High Court’s decision was not unanimous, however, the majority held that BHP did not terminate Mr Doevendans for a prohibited reason and, therefore, the CFMEU’s appeal was dismissed.

The majority cited the High Court’s decision in Barclay2  that a decision- maker’s evidence can discharge an employer’s onus of proof. It held that  none of the reasons given by the General Manager, which were accepted by Justice Jessup at first instance, were prohibited reasons; the General Manager had not dismissed Mr Doevendans because he participated in the lawful activity of a protest organised by the CFMEU, nor because in carrying and waving the sign, Mr Doevendans was representing or advancing the views or interests of the CFMEU (as alleged by the CFMEU).

Significantly, the majority held that the Fair Work Act 2009 (Cth) (FW Act) does not “direct a court to enquire whether the adverse action can be characterised as connected with the industrial activities which are protected by the Act”.

Rather, it requires a determination of fact as to the reasons which motivated the person who took the adverse action”. On this basis, their Honours held that, merely because adverse action has a connection to an industrial activity, it does not mean that the adverse action was taken because of the industrial activity.

Bottom line for employers

  • This case affirms the principle that the High Court established in Barclay, that whether an employer has taken adverse action against an employee  for a prohibited reason will relate to the motivation of the person or people (the “decision maker(s)”) who decided on the action to be taken.
  • The High Court’s decision confirms that a decision maker’s testimony as to the reasons for their decision is capable of discharging the employer’s statutory onus. However, the decision maker’s testimony will be considered in light of all of the evidence.
  • This means that employees will not necessarily be immune from disciplinary action for any misconduct merely because that misconduct can be characterised as, or connected to, an activity organised or promoted by an industrial association or as representing or advancing the views or interests of an industrial association.
  • In deciding whether adverse action has been taken for a prohibited reason, courts will take into account the evidence of the decision-maker in light of the established facts. Employers should therefore ensure that the reasons and motivating factors for all decisions which could amount to adverse action are well documented.