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Special Leave Granted to Appeal High Court Decision

Special Leave Granted

BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCAFC 132

On 16 May 2014 special leave was granted by the High Court to appeal the decision of the Full Court of the Federal Court of Australia made in the case of BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union.

On 13 December 2013 the Full Court of the Federal Court of Australia decided that the dismissal of an Employee, who on three separate occasions held and waived a sign with the words “No principles SCABS No guts” at an industrial protest, was not unlawful. 

More specifically, the Full Court found that the Employer, in terminating the Employee’s employment, had not contravened the General Protection provisions of the Fair Work Act (Cth) 2009 (‘the Act’) despite the fact that the Employee’s conduct occurred in the course of and in relation to protected industrial action.

The Full Court, in a 2-1 decision, was satisfied that the real reason for dismissing the Employee was that his conduct in holding and waving the Scab sign was contrary to the Employer’s workplace policies and procedures (as opposed to his participation in an industrial dispute).

The decision of the Full Court was important because it confirmed that an employee’s participation in an industrial activity may be very closely related to an Employer’s decision to take “adverse action” against the Employee, without actually being the reason for or the underlying cause for the dismissal decision. The difference is significant because a related reason that is ultimately not the real reason will extinguish an Applicant’s General Protections case.

The High Court’s grant of leave has re-opened this General Protections debate. 

Based on the High Court’s Transcript of proceedings, one of the key issues to be tested appears to be whether an employer can pick out a piece of activity which is part of permitted activity under section 347 of the Act and say I am not happy with that particular action/activity and so I am going to say that it is in contravention of our code of conduct and therefore liable for disciplinary sanction. More particularly, can an Employer successfully defend a General Protections Application of this kind on the basis that a disciplinary finding that an Employee has contravened a workplace policy or procedure is not a prohibited reason as defined by the Act and therefore is lawful and exempt?

Implications for Employers and Employees

This issue to be determined by the High Court will be significant. Can an Employer use their workplace policies to shield against an Employee’s claim that they have been subjected to adverse action (e.g. disciplinary sanction) because of their participation in protected industrial action? 

The determination will undoubtedly raise some interesting discussion as to the weight to be attached to workplace policies and the extent to which an employee’s actions may be measured against them, even when engaged in lawful industrial activity.