In brief - Employee's sacking not related to industrial activity or union views
The High Court has held that an employee was dismissed not for a reason which is prohibited by the Fair Work Act, but for violating a workplace conduct policy to treat colleagues with courtesy and respect.
Union claims that employee dismissed for participating in industrial activity
The case Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd  HCA 41 arose from a 2012 CFMEU lawful protest against BHP involving 3,000 miners working in Queensland’s Bowen Basin, where Mr Doevendans, a union delegate, was terminated from his employment for holding up and waving a sign at passing motorists, which read: “No principles SCABS No guts”.
When terminating Mr Doevendans' employment, BHP asserted that it should be able to control the “degree of decorum” on picket lines.
The CFMEU commenced proceedings in the Federal Court of Australia, arguing that BHP contravened section 346(b) of the Fair Work Act, which prohibits terminating an employee because the employee participated in industrial activity, which includes lawful protest.
First instance decision reinstates employee and imposes civil penalty on employer
In the first instance decision on 7 November 2012, in CFMEU v BHP Coal Pty Ltd (No 3)  FCA 1218, Justice Jessup of the Federal Court accepted BHP’s reason for terminating Mr Doevendans because his conduct did not conform to company expectations. However, Justice Jessup said that section 346(b) had been contravened because BHP was also motivated by the employee's industrial activity and representation of union views. As a result, Mr Doevendans’ employment was reinstated and a civil penalty was imposed on BHP.
Employee found to have been dismissed for violating workplace conduct policy
On appeal, on 13 December 2013 in the case BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union  FCAFC 132, the Full Court of the Federal Court ("FFC") by majority reversed this decision, confirming that Justice Jessup’s approach was inconsistent with that set down by the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay  HCA 32. (Please see our earlier article Bendigo Regional Institute of TAFE v Barclay - High Court overturns Federal Court decision.)
The FFC held that the trial judge had failed to consider the general manager’s reasoning for dismissing Mr Doevendans from his employment, which included:
- Mr Doevendans had held up a sign that was “inappropriate, offensive, humiliating, harassing, intimidating and flagrantly in violation of BHP Coal's workplace conduct policy to ‘treat colleagues with courtesy and respect’"
- Mr Doevendans was well aware of the policy
- Mr Doevendans demonstrated "arrogance"
- Mr Doevendans’ conduct was "antagonistic to the culture" the general manager was trying to develop at the workplace.
Further, the FFC held that Mr Doevendans’ engagement in industrial activity played no part in the manager’s decision to terminate. The fact that holding up a sign when participating in a lawful industrial activity also fell within the protections under the Fair Work Act was not relevant.
The CFMEU subsequently took the matter to the High Court.
High Court finds that employee's termination unrelated to his industrial activity
On 16 October 2014, by a 3-2 majority, the High Court held that the reason to dismiss Mr Doevendans did not include or was not "because of" his participation in the lawful industrial activity but rather, that his conduct in holding up the sign which read: “No principles SCABS No guts” was contrary to BHP’s code of conduct. His termination was therefore not prohibited.
Comments following the High Court decision
Andrew Vickers, General Secretary of the CFMEU commented:
We maintain our belief he (Mr Doevendans) was targeted for sacking not because he was holding a sign but because he was a union delegate. The word "scab" is of common and historical use in Australian industrial disputes; it’s not a personal insult but a reflection of collective values.
Mr Vickers further claimed that BHP used the “excuse of a code of conduct to put a worker out of a job”.
The CFMEU's focus seems to be misplaced on Mr Doevendans being a union delegate or participating in industrial action, rather than his offensive and inappropriate conduct, which in this case was contrary to the company’s code of conduct.
What is a "scab"?
When one looks at the historical meaning and use of the word "scab", it is difficult to understand how Mr Vickers maintains this view.
The use of the word "scab" in industrial action originated in the sixteenth century, when it was considered unacceptable for a "strikebreaker" to return to work without the union’s permission, thereby making strike action effectively useless. Labelling a strikebreaker a "scab" prompted anger and humiliation.
American author Jack London provided the most famous definition of the word "scab", subsequently adopted by the U.S. labor movement, stating:
After God had finished the rattlesnake, the toad and the vampire, He had some awful stuff left with which He made a scab. A scab is a two-legged animal with a cork-screw soul, a water-logged brain, a combination backbone of jelly and glue. Where others have hearts, he carries a tumor of rotten principles.
Mr Vickers' contention that calling someone a "scab" is "not a personal insult but a reflection of collective values" appears to be at variance with this description.
Creating a good workplace culture
Creating a good workplace culture takes many years and is important in ensuring the ongoing viability and success of a business. Importantly, employees should have comfort in knowing that their loyalty to their employer is protected, without fear of retribution from industrial groups.
Unfortunately, as observed in this case, an employee’s agenda may not necessarily align with the employer’s intention to create and maintain a good workplace culture, particularly when the employee does not act in accordance with the employer’s policies incorporating the employer's values and standards.
Training your staff in appropriate conduct
From the CFMEU v BHP Coal decision, it is evident that employers must be able to demonstrate that anyone entering the workplace (whether employee, contractor, apprentice or volunteer) is trained in appropriate conduct and has formally acknowledged that they have received this training.
All workers need to be aware of what constitutes appropriate and inappropriate conduct, that their behaviour needs to uphold the employer's values and standards and what the consequences are for non-compliance.
Appropriate training and acknowledgement of that training can then assist to protect an employer from disputes and legal claims in circumstances where an employee's behaviour contravenes the prevailing standards, as well as allowing an employer to maintain control of its workplace.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2022.