The majority of the High Court has ruled in favour of BHP Coal
and held that the employer did not take adverse action for a
prohibited reason when it dismissed an employee union delegate over
allegedly intimidating other workers by displaying a sign supplied
by the CFMEU at a union protest which read "No Principles
SCABS No Guts".
The Full Federal Court had found in favour of BHP Coal and
reversed an earlier Federal Court ruling in favour of the CFMEU and
the union delegate who had been terminated.
The CFMEU argued that the termination was due to the
employee/union delegate's participation in lawful industrial
activity - which is protected under the Fair Work Act 2009
The General Manager of BHP contended that the reasons for the
termination were the content of the union delegate's
communications with his fellow employees, the way in which he made
those communications and what that had conveyed about him as an
The High Court minority judgments held that it was impossible to
divorce the lawful industrial activity from the circumstances in
which it was used. Accordingly, it was possible to contradict BHP
Coal's General Manager's assertion that he did not take
adverse action for any prohibited reason or for reasons including
the prohibited reason.
The majority of the High Court disagreed and in so doing left
very little scope to second guess the reasons provided by a
decision-maker as to why adverse action had been taken against an
employee otherwise in contravention of the General Protections
provisions in Part 3.1 of the Fair Work Act 2009
The decision is good news for employers and human resources
managers giving evidence as to their reasons for making a decision
adversely affecting an employee. This is because that once the
evidence of the reasoning of a decision-maker is accepted with no
qualification, that should be the end of the matter even if the
circumstances objectively lead to an inference being drawn contrary
to that evidence.
This is all the more important for employers and human resources
managers who are subject to a reverse onus of proof in defending
adverse action claims.
We recommend that employers seek legal advice prior to
terminating employment in circumstances which may give rise to a
claim under the General Protections provisions of Part 3.1 of the
Fair Work Act 2009 (Cth).
Case note: CFMEU v BHP Coal Pty Ltd  HCA 41.
(16 October 2014)
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.Madgwicks is a member
of Meritas, one of the world's largest law firm
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