Clermont Coal Pty Ltd (Clermont) has recently been found to have engaged in adverse action against a Construction, Forestry, Mining and Energy Union (CFMEU) officer, Alan Scott, when assessing his skills and attitude as part of a redundancy selection process. The adverse action arose because one of the Clermont decision makers was unable to distinguish between Mr Scott’s performance as an employee and his performance as a CFMEU officer performing industrial activities.

Implications for employers

When assessing an employee’s performance for redundancy selection purposes, it is crucial the assessment only takes into account matters related to an employee’s performance of their role and not matters associated with their exercise of workplace rights. Courts will inquire into the reasoning process engaged in by each person whose involvement had a material effect on the ultimate decision. If multiple people are involved in the decision to terminate an individual’s employment, each person’s reasoning process will be examined to see if the reason is affected by the person’s workplace rights.

Background

Mr Scott was a CFMEU officer from 2012 until his termination in 2014. Among other roles, Mr Scott was a bargaining representative in the 2012 and 2014 rounds of enterprise bargaining negotiation.

In 2014, Clermont engaged in a selection process where up to 100 employee and contractor roles would be made redundant as a result of operational changes.

As part of the redundancy selection process, employees were assessed against four metrics. First, work performance review (based on employee’s 2013 performance reviews). Second, performance management history (past disciplinary action, misconduct or unacceptable behaviour). Third, skills/competencies (skills/licenses/tickets) and finally, attitude (an employee’s flexibility/adaptability and relationship with other employees and leaders).

Each metric assessing skills/competencies and attitude required supervisors and superintendent’s to make an assessment of the employees. Mr Scott’s skills/competencies and attitude were assessed by Mr Fleming (acting Haulage Superintendent) and Mr Christensen (Mining Services Superintendent). The final decision to make Mr Scott redundant was made by Mr Pretorius (General Manager).

Mr Scott was assessed to be in the bottom five after the assessment process described above.

Relevantly, Mr Fleming gave Mr Scott a score of 19 out of 40 and noted in evidence “I have received feedback … that Mr Scott is lazy, that he lacked initiative and that he would often not do things unless he was asked to…”, and in his dealings with Mr Scott as a member of the CFMEU executive “the way he spoke to me was unacceptable … it was not what he said to me, but the sarcastic and blunt tone of his voice which I found to be unacceptable”.

Mr Christensen gave Mr Scott a score of 24 out of 40 and noted “based on my dealings with Mr Scott while performing his duties as a Pump Crew Operator, I have found him to have a negative attitude in that I often felt like he was trying to find ways to catch Supervisors and Superintendents out.

Mr Scott alleged that he was selected for redundancy and terminated because he was a CFMEU officer and exercised his workplace rights to engage in industrial activity as well as making a complaint or enquiry about his workplace rights.

Decision

The Court found in favour of Mr Scott and held that Mr Scott was terminated because he exercised workplace rights.

In finding for Mr Scott, Justice Reeves determined three issues. First, the workplace rights Mr Scott exercised, second, whether the decision to terminate Mr Scott was taken by one or more people on Clermont’s behalf and third, whether the decision makers made their decisions because of Mr Scott’s workplace rights.

Mr Scott’s workplace rights

Justice Reeves found that Mr Scott exercised at least two workplace rights in connection with the decision to terminate his employment, namely, Mr Scott made a complaint or inquiry into the process of redundancy which indirectly related to his employment and Mr Scott engaged in a broad range of industrial activities between 2012 and 2014.

Who was the decision maker?

Clermont argued that it was the General Manager, Mr Pretorius, who made the decision to terminate Mr Scott’s employment. However, in cross-examination, Mr Pretorius conceded that his decision was directly informed by the assessments made by (among others) Mr Christensen and Mr Fleming. Justice Reeves followed the decision in Elliott v Kodak Australasia Pty Ltd and found that he must examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision. Relevantly, this was Mr Pretorius, Mr Christensen and Mr Fleming.

The decision makers’ reason for terminating Mr Scott

Justice Reeves found that Mr Pretorius and Mr Christensen did not make their assessment of Mr Scott on the basis of his activities as a union activities. However, Mr Fleming did.

Justice Reeves considered that where a decision maker makes an assessment of an employee’s ‘attitude’, it is crucial that the assessment take into account only those matters related to the employee’s performance of their role and not matters associated with a workplace right. Mr Fleming failed to observe this principle.

Justice Reeves found that Mr Fleming’s perception of Mr Scott as being “sarcastic and blunt” was formed while Mr Scott was acting in his capacity as a CFMEU executive member. Ultimately, his Honour found that had Mr Fleming not assessed Mr Scott on the basis of this prohibited reason, Mr Scott’s assessment score would have been higher and would not have resulted in Mr Scott’s termination.

Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014