Proceed with caution when dealing with difficult employees

The Federal Court of Australia has signalled the importance of careful consideration before action by employers who have difficulty with union representatives.

In one of the first significant decisions since the High Court of Australia decision in Bendigo Regional Institute of TAFE v Barclay,the Court has made clear that employers still need to justify why their action is strictly behaviour related and not related to industrial activity or union membership.

In the Barclay case, the High Court overturned a previous decision of the Federal Court which, in brief, would have made it difficult for an employer to take any legitimate disciplinary action against a union delegate.

The High Court reverted to a position closer to the previous understanding of the law; that if an employer could satisfy the court that the union membership or industrial activity was not the “substantial or operative factor” influencing a decision to take adverse action, then it may be able to establish that the adverse action was not for unlawful reasons.

In AMWU v McCain Foods , the Federal Court took a novel approach to resolving a dispute not dissimilar to circumstances in the Bendigo TAFE case. It is important to note that the decision is interlocutory at this stage and the findings of the court are preliminary until a final hearing.

McCain terminated the employment of a union delegate which it said had engaged in bullying behaviour against a manager of the company. The company relied on a report commissioned by it as part of an investigation into a complaint by the manager and a similar complaint by the employee against the manager. The allegations against the employee included that he:

  • “Uses foul language”;
  • “Constantly talks over me”;
  • “Berates me personally”;
  • “Makes accusations about my behaviours”; and
  • “Stands over me and leans into me when I am sitting in my desk to intimidate me and try to control me”.

All of the conduct complained of occurred at meetings which dealt with industrial matters.

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.


This article was originally published on SmartCompany.com.au where Peter is a regular contributor.

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