In a recent case involving the CFMEU and BHP Coal, the Federal
Court had to consider an application by the CFMEU for two employees
to be reinstated because the termination of their employment was
said to be adverse action, taken for reasons connected with their
exercise of workplace rights, and in particular their union
The employees, Adams and Winter, were members of the CFMEU.
Another employee, Cramond, had resigned from the union. Mr Cramond
alleged that Adams and Winter, "stood over" him, on
separate occasions but both aggressively, and pressed him to
re-join the union and threatened that he would be "sent to
Coventry" if he did not. The work site was a "union
pit" with almost all the employees belonging to the union.
Cramond complained to BHP Coal. He complained about bullying but
also many other issues involving the union, most of which HR found
had no substance. Adams then sued Cramond for defamation. Adams
lost his defamation case, and in the process, the judge made
comments critical of Mr Adams and accepted Cramond's version of
events. BHP Coal considered the judge's comments and then asked
Adams and Winter to show cause why their employment should not be
terminated. It was not satisfied by what they had to say, and
terminated the employment of both of them. Adams and Winter, via
the CFMEU, then commenced adverse action claims in the Federal
Court, arguing that the terminations were really motivated by their
union roles and the strained industrial relations between the union
and BHP Coal.
BHP Coal therefore had to prove that the sole reason for the
termination of employment of the two men was the alleged bullying,
and that their union involvement had nothing to do with the
termination. BHP Coal failed to prove this, and lost the case.
Overall, the evidence suggested that BHP had supported
Cramond's defence of the defamation proceedings, and that
senior management had taken a close interest in the case, which
strongly suggested that the industrial relations context and the
union activity Adams and Winter were factors in the decision to
terminate their employment.
The reliance on bullying conduct to justify the termination lost
force because in another bullying case of greater seriousness, BHP
Coal had given a final warning and a 14 day suspension without pay,
to an employee who twice threatened another employee by:
verbal abuse, swearing, yelling and using an aggressive and
physical threats such as "I'll see you out in the car
park" (which was accepted to be code for "I'll beat
you up") and threatening to punch him.
This conduct was far more serious than the robust and assertive
expression of the union's position by Adams and Winter which,
was not alleged to involve swearing or threats of violence. The
only apparent explanation for the difference and treatment of the
two cases was that in the case of Adams and Winter their status in
the union and the involvement of Cramond in arguments with the
union, and BHP Coal's generally poor industrial relations with
the union were factors in the termination decision.
What is the significance of this for
This decision highlights two particular lessons:
Whether there is an illegitimate reason behind action against
an employee, so that it may constitute "adverse action"
is a broad question, which will be assessed having regard to
circumstances overall. The relevant manager saying that
illegitimate reasons were not taken into account will be tested
against the background facts.
When considering taking disciplinary action, it is important to
consider how the decision to do so will look to an independent
outside observer, and to question whether the circumstances might
suggest that illegitimate reasons have affected the decision. If a
manager, being honest and objective, thinks that there is a risk of
adverse action being upheld, then that is a risk that has to be
factored into decision making. Ideally, this should result in the
process being refined or action taken in such a way as to minimise
this risk, perhaps at a different time or in a different
Secondly, it is no good relying on a "real reason"
which will look dodgy because there will be other situations which
can be used to show that a similar issue was not treated so
seriously in other situations. As an employer, you need to take a
broad view to how things will look to an outside observer: will the
reason you rely on look dodgy?
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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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