When what you say means more than where, when or why you are saying it
Today the High Court handed down its decision in the case of CFMEU v BHP Coal Pty Ltd  HCA 41.
The decision confirms that employers may discipline employees for misconduct even if the misconduct occurs while the employee is engaging in lawful industrial action or exercising workplace rights.
Mr Doevendans was one of several BHP employees who participated in a lawful protest as a part of industrial action organised by the CFMEU. During that protest, Mr Doevendans waved a sign which read “No principles SCABS No guts”, directed at non-striking workers.
BHP considered that these signs were offensive towards other workers, and contrary to its workplace policies about treating other employees with courtesy, dignity and respect. During an investigation, Mr Doevandans expressed no contrition for his actions, and in fact was defensive about his behaviour.
BHP took the view that Mr Doevendans’ behaviour was inconsistent with the culture BHP was trying to establish, and terminated his employment.
The Federal Court
The CFMEU brought a general protections claim in the Federal Court on behalf of Mr Doevendans, arguing that he was dismissed because he was a member of the CFMEU, and because he had engaged in lawful industrial activity.
The primary Judge accepted Mr Doevendans was dismissed because his offensive behaviour was in breach of BHP’s policies, and because of his lack of contrition when the allegations were put to him.
The Judge accepted that union membership and industrial activity were not factors in BHP’s decision to dismiss Mr Doevendans. However, because Mr Doevandans’ conduct had occurred in the course of participating in a strike, which was lawful industrial action, the Judge held that Mr Doevendans was dismissed because of that industrial action, and therefore his dismissal was unlawful.
The appeal to the Full Bench
BHP successfully appealed the primary Judge’s decision to the Full Bench of the Federal Court. The Full Bench found that the Court had correctly determined that Mr Doevendans had been dismissed because of his offensive behaviour, and not because of his participation in lawful industrial activities.
The High Court
A 3:2 majority of the High Court upheld that Mr Doevendans’ dismissal was not unlawful.
The majority was of the view that while the reasons for Mr Doevendans’ dismissal were obviously connected to his participation in lawful industrial action, that industrial action was not a reason for the dismissal.
The primary Judge had accepted that Mr Doevendans was dismissed because of his conduct, and what that conduct meant to his employer, and not because he was engaging in lawful industrial activity. The primary Judge was entitled to have regard to the lawful industrial activity in deciding the real reasons for Mr Doevendans’ dismissal. But once those reasons had been identified, the majority held that there was no need for the primary Judge to then consider whether Mr Doevendans’ conduct was inherently connected with his lawful industrial activity, and therefore also protected.
In contrast, a minority of the High Court held that the Fair Work Act 2009 (Cth) makes no meaningful distinction between participating in lawful industrial activity, and the manner in which an employee participates in that activity. On that basis, an employee is protected from adverse action while participating in industrial activity so long as the conduct is lawful.
What does this mean for employers?
The High Court’s decision confirms that an employee’s misconduct is not protected just because it happens while the employee is participating in lawful industrial activity.
However, as always it remains essential that an employer tread carefully when proposing to take adverse action against an individual with workplace rights, or who is participating in lawful industrial activities. The employer must be able to demonstrate that the reasons for taking the adverse action are divorced from the existence of the workplace rights or the taking of industrial activity.
Essentially, this will require the employer to demonstrate it would have taken the adverse action against the employee even if the workplace right had not exercised, or industrial activity had not occurred. This will be easier when an employer has taken similar action against employees without such rights, or who are not engaging in such activities. But it will be more difficult when the reasons for the adverse action are closely related to an employee exercising their workplace rights or engaging in industrial activities.
It is therefore essential that managers seek appropriate advice before taking any adverse action against an employee who might be able to claim that the action is being taken against them because of a protected right or protected activity.