The last thing any employer wants is to be forced into
reinstating an employee after a messy general protections dispute.
Until recently, most general protections claims have resulted in
either the dismissal of an employee or an award of damages and
compensation. However the recent case of CFMEU v Pilbara Iron
Company (Services) Pty Ltd (No 3)  FCA 697 highlights
the possibility of reinstating employees subjected to adverse
Darren Lamberth ('the Second Applicant'), who was a
member of the CFMEU ('the First Applicant'), was employed
by Pilbara ('the Respondent') under a fixed term contract
of 12 months, but unlike most others in his position, was not
offered permanent employment.
The Respondent was also found to have marked down his
performance review from a "pass" in the draft assessment
to a "fail" in the final assessment, and rejected his
nomination as a Health and Safety Representative.
The Federal Court rejected the Respondent's argument that
the failure to extend the Second Applicant's contract was
because of issues relating to his attitude, communication and
behaviour. The court instead agreed with the Applicants' claim
that the actions amounted to adverse action, actuated because of
the Second Applicant's union membership, industrial activism
and complaints and inquiries about workplace practices - reasons
which are prohibited by ss340 and 346 of the Fair Work
In reaching this decision, the Court applied an important
earlier decision (currently before the High Court)1,
which held that in determining whether actions taken by an employer
were unlawful required a determination of the actual
reasons as to why the action was taken, rather than the
reasons asserted by the employer.
The Respondent was ordered to offer permanent employment to the
Second Applicant, after the Court found that there was no evidence
which suggested that re-employment was impracticable. At the time
of writing this article, the Court has yet to decide whether a
penalty will be imposed on the Respondent.
WHAT DOES THIS MEAN FOR EMPLOYERS?
Employers who are found to have taken adverse action face severe
consequences, including significant penalties and even
reinstatement of the employee. It is therefore our view that
employers exercise extreme caution to ensure that disciplinary
actions are not linked to unlawful reasons, including union
membership or complaints made by the employee. We strongly
recommend obtaining profession advice prior to exercising any
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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