Courts divided over “scabs” with “no guts” dismissal

An unfair dismissal case left judges in disagreement over the termination of an “intimidating” employee last week.

Employers should be cautious when dismissing employees involved in union action, even when they are certain that they are not terminating individuals for participation.
BHP Coal found itself in this situation when terminating an employee for offensive behaviour which he displayed whilst on strike.
Employees of the company took industrial action to support negotiations for an enterprise agreement in February 2012. Henk Doevendans, an active member of the Construction, Forestry, Mining and Energy Union (CFMEU) was taking part in the protest, repeatedly waving a sign which read: “No principles | SCABS | No guts”.
Management was told by non-striking workers that the conduct displayed by Doevendans intimidated them.

Consequently, Geoff Brick, the company’s general manager, dismissed Doevendans for displaying behaviour which did not comply with the Code of Conduct.

Brick explained that Doevendans’ use of the word “scabs” was “offensive, intimidating and humiliating,” and made his non-striking colleagues feel “harassed, insulted, abused, bullied and intimidated.”

Additionally, Brick gave evidence that he regarded Doevendans as unrepentant, defensive and arrogant – and that he was unlikely to change his ways.
Doevendans’ employment with BHP was terminated in May 2012, leading the CFMEU to begin proceedings against Doevendans’ former employer.

The union claimed that the dismissal was unfair as it contravened the Fair Work Act, which prohibits dismissal because of participation in a lawful activity organised or promoted by a union or representing or advancing the views, claims or interests of a union.
Brick, the relevant decision-maker, gave evidence that he had not dismissed Doevendans because he engaged in the protest or represented union views – he had been dismissed because his language had caused intimidation, which Brick considered contrary to the workplace culture and Code of Conduct.

The judge concluded that these reasons could not be separated from Doevendans’ participation in lawful activity, finding the contravention against the Fair Work Act made out.
The finding was subsequently reversed by A Full Court of the Federal Court. Justices Dowsett and Flick concluded that BHP Coal had not dismissed the employee because of his engagement in industrial activity.
The complexity of the issue was made clear by the agreement of the two opposing judges in that the language on the sign, although it was offensive, could not be totally detached from reasons based on Doevendans’ lawful activity.
A clear result of the case is that if the behaviour of an employee-unionist offends or is against the company’s values then the employer may take disciplinary action – even if the behaviour is representative of a union.

The conduct of an employee who is advancing the views or interests of a union is not absolutely protected – employers must show concern for their non-unionist employees also.
Clayton UTZ advises employers to minimise risk of similar cases by ensuring that:
  1. Where possible, disciplinary decisions are based upon well-developed and sound policies and/or codes of conduct.
  2. The reason behind the actions of the decision-maker is clearly stated and can be defended by reference to those policies or codes and the values behind them, particularly in cases involving industrial activity.
  3. They undertake a robust and defensible investigation process to form the basis for any decision involving disciplinary action.

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