Justice Bromberg found that, for interlocutory purposes, that the suggestion that the employee was dismissed because he was a union delegate was weak. He did, however, find that McCain’s task in showing it did not act for a prohibited reason:
“May well be difficult where a distinction is sought to be drawn, as in this case, between industrial activity and what is said to be the inappropriate behaviour which accompanied it. To the extent that the behaviour formed a legitimate part of the activity, there is a basis for contending that the adverse action was actuated (at least in part) by the industrial activity.
“On the facts of this case, it is strongly arguable that an association existed between the industrial activity in which [the union delegate] engaged and the adverse action taken to dismiss him. The question will then be whether such an association was an operative factor in McCain’s decision to take adverse action.”
The novelty in the court’s approach lay in the practical outcome of the case. Until a final hearing can be held, the court held that the delegate should be re-instated, but only after he agreed to comply with a “Workplace Behaviour Protocol” (which appears at the end of the decision) in relation to his duties as a union delegate.
The short lesson for employers is that while the High Court decision in Barclay restores some balance to an employer’s ability to deal appropriately with the poor conduct or behaviour of employees, regardless of their union membership or activity, it remains fundamental that the employer must show that its reasons for taking adverse action against the employee were not in any way motivated by an unlawful reason.
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Peter Vitale is a lawyer with over 18 years’ experience practising in employment and industrial relations law. He runs his own practice in Melbourne.
