The Federal Court has ruled that a union organiser, who was redeployed to other duties (and ultimately dismissed) because of his involvement in a Socialist political party, was the victim of unlawful adverse action. The union’s concern that he might “undermine or infiltrate” the (trade) union movement did not justify the action.
The Applicant was employed by the union (CFMEU) in 2013 as an organiser on a 6 month contract, in the course of which he was required to work in alliance with another union (AWU).
The Applicant had been a member of the Socialist Alliance Party between 2009 and 2011, and thereafter had retained links with people who were actively involved in the party.
In July 2013, the national secretary of the AWU complained to his counterpart at the CFMEU about the Applicant. It was alleged that he was “a Trot[skyite]” (a reference to his involvement in the Socialist Alliance) and had been “bagging” (criticising) officials of the AWU.
This led to a meeting between the Applicant and the CFMEU at which it was announced that he would be re-deployed to other work.
Five days later, at another meeting with the CFMEU, the Applicant was asked to show cause as to why his employment should not be terminated. It was alleged that the Applicant had been untruthful to the CFMEU about his involvement with the Socialist Alliance, and that he had authored a social media post which was critical of the CFMEU’s approach at the initial meeting.
The Applicant responded in writing to the “show cause” request, but to no avail. He was dismissed three days later.
The Applicant brought proceedings in the Federal Court. He alleged that the redeployment, the requirement to show cause and the dismissal each amounted to unlawful adverse action.
The Fair Work Act 2009 (Cth) (the Act) makes it unlawful for an employer to take “adverse action” (which includes dismissal, but also any other action which alters the employee’s position to his/her prejudice) because of the employee’s political opinion. The employer bears the onus of proving that the employee’s political opinion was not a substantial and operative cause of the actions it took.
The trial judge (Mortimer J) found that the Applicant’s involvement in the Socialist Alliance fell within the “political opinion” ground of the adverse action laws. The redeployment was an episode of adverse action, and so too were the “show cause” process and subsequent dismissal.
The case then turned on whether the Applicant’s involvement in the Socialist Alliance was a substantial and operative cause of the three actions taken by the CFMEU.
The CFMEU argued that the actions were taken because the Applicant had been critical of the AWU, had lied about the extent of his dealings with Socialist Alliance and had disparaged the CFMEU on social media. None of these are prohibited reasons.
The Judge found that although a combination of matters caused the CFMEU to take the three adverse actions against the Applicant, in each instance a significant part was inextricably linked to the Applicant’s political opinion – namely a strong belief that people associated or affiliated with the Socialist Alliance tended to infiltrate and undermine unions. This led the union to more readily believe that the Applicant had criticised the AWU and that his social media post was intended to disparage the CFMEU.
No distinction could be drawn between the desire to avoid infiltration of the union and the political opinions of the Applicant.
“The respondent seeks to separate a protected attribute from characteristics either associated with it, or perceived by the decision-maker to be associated with it. In the days before pregnancy became a distinctly protected attribute in anti-discrimination law, becoming pregnant was seen as a characteristic associated with women, or perceived to be associated with women. An employer might say: I refused to give the female applicant the job because she might become pregnant, not because she was a woman. As it has been found, that is still sex discrimination.”
What does this mean for employers?
The existence of a protected attribute means that any disciplinary action which the employer proposes to take against the employee needs to be based on strong, direct evidence of relevant misconduct. Relying on assumptions, or reasoning on the basis of a tendency, does not allow the employer to mark out a basis for its actions which is sufficiently disconnected from the protected attribute to avoid liability under the adverse action laws.