The case of Construction, Forestry, Mining and Energy Union (CFMEU) v BHP Coal Pty Ltd (No 4) is an important decision of the Federal Court relating to s346 of the Fair Work Act 2009 (Cth) (Act), where the termination of 2 employee’s amounted to unlawful adverse action because the employer failed to discharge its onus of proving that the terminations were not because of the employees’ union involvement.
In 2008, a bullying complaint was made against Mr Kevin Adams and Mr Justin Winter (“employees A and B”) of BHP Coal Pty Ltd (“the respondent”) by another employee (“employee C”). Employees A and B were also union officers of the CFMEU’s mining and energy division at Peak Downs Lodge. BHP’s investigation concluded that the complaint was unsubstantiated. Subsequently, employees A and B brought a defamation suit against employee C. Whilst the Court dismissed the action, it made a finding that employees A and B had physically threatened employee C. In 2011, and as a result of this finding, BHP terminated the employment of A and B.
On behalf of employees A and B, CFMEU commenced proceedings against BHP alleging that the termination of their employment amounted to unlawful adverse action in contravention of s 346 of the Act.
The issue before the Court was whether BHP’s the dismissal of employees A and B amounted to adverse action.
The Federal Court held that BHP’s actions did amount to adverse action. That is, they had failed to discharge its onus of proving that the basis of A and B’s termination was not because they were union officers. Justice Collier noted that BHP’s investigation into the complaint was unsubstantiated and that neither A and B had engaged in conduct that could be described as angry, aggressive, bullying, harassing or coercive towards employee C. Instead Justice Collier held that one of the reasons for A and B’s termination was in relation to their involvement in union activity. Such a reason undermined the principles of freedom of association contained in the Fair Work Act. It was also noted that a similar incident of bullying had been reported which had not resulted in termination. Thus BHP’s treatment of A and B was considered harsh compared to similar incidents of bullying.
The Court held that BHP’s conduct amounted to a serious breach of the Act and therefore imposed a fine of $60,000.
This case is a reminder to employers to ensure that bullying complaints are dealt with consistently. A decision to terminate employment because of a bullying complaint should be based on substantiated evidence and not wholly, or in part, on an employee’s involvement in a union, as this undermines the principles of freedom of association as provided for under the Act.
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This article was written by Natasha Duff (Senior Lawyer).
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