The Fair Work Commission has held that employers must consider the individual circumstances of employees taking unlawful industrial action before they respond with disciplinary measures.

The employer stood down several employees from a project due to unlawful industrial action on a work site. There was a meeting with CFMEU officials during a morning break, which ran past the scheduled end time and into work time, as well as a meeting during the lunch break. The employer considered this action unlawful and sent a dismissal letter to each of the participating employees the following day. They had already received warnings against such conduct in the past. An affected employee lodged an unfair dismissal application, claiming that his individual circumstances had not been taken into consideration. He was not in attendance at the morning meeting, where it was decided that a second afternoon meeting would take place. He joined the afternoon meeting seven minutes after it had begun, only because he had seen a number of workers congregating with CFMEU members, and went over “out of curiosity”. 

Commissioner Booth found that the employee had indeed participated in unlawful industrial action; however the dismissal was an overly harsh response. The company had made no attempt to “differentiate the factual circumstances of different individuals”. A large part of the employer’s decision to react that way was based on the fact that the morning session ran past the scheduled end time and into work time, and it was at this point that the afternoon meeting was organised. The employee had played no part in this. The letter was generic and not “sufficiently specific” and did not give the employees a chance to respond to the reasons for dismissal.

Key points for employers: 

  • Unlawful industrial action does not in all cases provide a valid reason for dismissal.
  • Employers must always consider the individual circumstances of each employee before taking action to dismiss and provide employees with a genuine and meaningful opportunity to respond to allegations before taking such action.

A link to the decision can be found here: Mahoney v Bechtel Construction (Australia) Pty Ltd [2014] FWC 2756