Disciplining union members for engaging in conduct during the course of union activities (like protests) can be fraught with risk.  Employers may quickly find themselves faced with an adverse action claim, as was the case when BHP terminated a mineworker who had displayed the sign “No principles SCABS No guts” at a protest outside the front gates of BHP’s Saraji Mine in Queensland.

However, the High Court has recently held that the dismissal of the mineworker in these circumstances was lawful (CFMEU v BHP Coal Pty Ltd [2014] HCA 41). Employees will not be protected from disciplinary action merely because their misconduct occurs while they are wearing a union hat.

There’s a fine line

BHP said that it sacked the mineworker because he had breached BHP’s workplace conduct policy – by holding up the sign, he had been discourteous and disrespectful to fellow employees. However, the mineworker claimed that BHP terminated his employment because he had ‘engaged in industrial activity’ – he had been holding the sign as part of a union protest. Taking disciplinary action against an employee because they engaged in industrial activity (such as advancing or representing the views of a union) is prohibited under the Fair Work Act.

Was the union member immune from discipline because he was participating in a union activity at the time he engaged in a breach of BHP’s workplace conduct policy? After all, the employee was holding up the sign at a lawful union protest and he was terminated for holding up the sign. Wasn’t he terminated because he was participating in the protest?

The High Court said ‘no’, but was split 3-2. The majority said that, because the primary judge had found that the mineworker’s engagement in industrial activity played no part in BHP’s reasons for terminating the mineworker’s employment, it was not unlawful to terminate the mineworker.

Employers still need to take care

While, importantly, the High Court’s decision confirms that participating in union activities at the time of engaging in misconduct doesn’t immunise an employee, it does not mean employers have carte blanche to discipline union members in such circumstances. The complexity of the issues is underscored by the fact that two High Court judges took a different view to the majority.

The majority High Court emphasised that the key issue in these cases is a close examination of the reasons that the employer decided to take action against the employee. The courts will not simply accept the decision-maker’s evidence about the reasons, but will look at what ‘truly motivated’ the decision-maker. In the words of one Judge, an ‘inquiry into the mental processes of that individual’.

As a result, decision-makers will need to:

• carefully consider whether, irrespective of an employee’s union membership or industrial activity, the employee engaged in misconduct;
• consider whether disciplinary action is warranted; and
• ensure the reasons for any disciplinary action are not associated with union membership or activities.