The Federal Court has ordered an employer to pay a penalty of $7,500 for taking adverse action against an employee because he was participating in a lawful activity organised by, and was representing or advancing the views, claims and interests of, a union.

The employee was dismissed for breaching a workplace policy by holding a “scab sign” during a protest which occurred during a stoppage of work. The Court ordered the employer to reinstate the employee. The employee sought the imposition of a “substantial penalty” for the employer’s contravention.

The Court however held that the penalty of $7,500 was appropriate, as:

  • the dismissal was not “done in reckless disregard of the employee’s legal rights”, as there was evidence that the employer had sought legal advice before dismissing the employee;
  • there was no evidence that the employer had previously contravened the adverse action provisions or disregarded its obligations under the Fair Work Act generally (so, a “fairly light weighting” was given to the matter of specific deterrence); and
  • the concern which the employer showed “to comply with its legal and contractual obligations…[gave] rise to some confidence that the outcome of the case itself, together with the imposition of such penalty…will be a sufficient specific deterrence”.

The Court noted that it would be “salutary if the outcome of the present case sent a message to both employers and unions that the new provisions … may, and often will, require modifications to protocols and behaviours”.