Australia: Termination found to be adverse action because of employer’s inconsistent responses to bullying

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 membership.

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 angry tone
  • 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 employers?

This decision highlights two particular lessons:

  1. 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.
  2. 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 context.

  1. 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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