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 (Cth).
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 employee.
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 (Cth).
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 [2014] HCA 41. (16 October 2014)
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