The High Court has held that a man who was fired after calling his co-workers “scabs” will not get his job back.
BHP Coal fired Henk Doevendans from the Saraji coal mine in 2012 after he held a placard stating “No principals Scabs no guts” during a Construction, Forestry, Mining and Energy Union organised rally.
BHP argued these signs were offensive towards other workers, and contrary to its workplace policies about treating other employees with courtesy, dignity and respect.
During an investigation, Doevendans expressed no contrition for his actions and was defensive about his behaviour.
BHP took the view that Doevendans’ behaviour was inconsistent with the culture BHP was trying to establish, and terminated his employment.
The CFMEU brought a general protections claim in the Federal Court on behalf of Doevendans, arguing that he was dismissed because he was a member of the CFMEU, and because he had engaged in lawful industrial activity.
After a few legal twists, turns and appeals, a majority of the High Court upheld that Doevendans’ dismissal was not unlawful yesterday.
The High Court was of the view that while the reasons for Doevendans’ dismissal were obviously connected to his participation in lawful industrial action, that industrial action was not a reason for the dismissal.
Libby Pallot, workplace relations law specialist at Russell Kennedy Lawyers, says the decision is a good outcome for all employers.
She says the High Court decision confirms an employee’s misconduct is not protected just because it happens while the employee is participating in industrial activity.
“It is important for employers not to be afraid of taking action against employees who have engaged in inappropriate behaviour,” Pallot says.
“An employer has a strong defence if it can show that it would have taken the adverse action against the employee even if the workplace right had not been exercised, or industrial activity had not occurred”.
Pallot says as always it remains essential that an employer tread carefully when proposing to take adverse action against an individual with workplace rights, or who is participating in lawful industrial activities.
She says employers must be able to demonstrate that the reasons for taking the adverse action are divorced from the existence of the workplace rights or the taking of industrial activity.
“It is still very important for employers to get legal advice before taking any adverse action against an employee who is taking industrial action, or is absent on leave or WorkCover.”
Cara Waters is the editor of SmartCompany. Cara was previously a senior reporter at the Financial Times website FT Adviser in London and has also worked for The Sunday Times.
