Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163

Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163

The officers were not afforded an actual opportunity to be present and heard as required by union rules; the breach was not cured by an unexercised right of appeal. Application of the rules to prohibit dissenting public statements was contrary to statutory requirements and not valid to ground removal. Both officers were wrongfully dismissed and entitled to damages for the remainder of their fixed-term employment; damages to be adjusted for uncontested receipt of social security/alternative remuneration. Adverse action case failed as the removals did not occur for the proscribed reasons under the Fair Work Act, and the officers' complaints to the media were not protected workplace rights...

Parties
Appellant/cross Respondent: Construction, Forestry, Maritime, Mining and Energy Union; First Respondent/first Cross Appellant: Andrew Quirk; Second Respondent/second Cross Appellant: Brian Miller; Second Cross Respondent: Construction, Forestry, Maritime, Mining and Energy Union (New South Wales Branch)
Jurisdiction
Australia
Judgment Date
11 October 2023
Procedural Posture
Appeal and Cross Appeal in the Fair Work Division of the Federal Court of Australia / Full Court Judgment on Appeal and Cross Appeal
Outcome
Appeal allowed in part; cross-appeal dismissed; damages to be adjusted; no order as to costs.
Legal Topics
Breach of Contract, Adverse Action, Registered Organisations, Natural Justice, Wrongful Dismissal, Procedural Fairness, Damages, Enterprise Agreements, Discrimination on Political Opinion, Procedural Requirements Under Union Rules
Employment Law Industrial Law Breach of Contract Adverse Action Registered Organisations Natural Justice Wrongful Dismissal Procedural Fairness +4 more

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Parties

Construction, Forestry, Maritime, Mining and Energy Union

Appellant/cross Respondent

Andrew Quirk

First Respondent/first Cross Appellant

Brian Miller

Second Respondent/second Cross Appellant

Construction, Forestry, Maritime, Mining and Energy Union (New South Wales Branch)

Second Cross Respondent

Procedural Posture

Appeal and Cross Appeal in the Fair Work Division of the Federal Court of Australia / Full Court Judgment on Appeal and Cross Appeal

Legal Issues

  1. 1 Whether union rules were complied with in removal of officers for 'gross misbehaviour'
  2. 2 Whether opportunity to be heard was afforded
  3. 3 Whether availability of appeal cured defects in the initial hearing

Ratio Decidendi

The officers were not afforded an actual opportunity to be present and heard as required by union rules; the breach was not cured by an unexercised right of appeal. Application of the rules to prohibit dissenting public statements was contrary to statutory requirements and not valid to ground removal. Both officers were wrongfully dismissed and entitled to damages for the remainder of their fixed-term employment; damages to be adjusted for uncontested receipt of social security/alternative remuneration. Adverse action case failed as the removals did not occur for the proscribed reasons under the Fair Work Act, and the officers' complaints to the media were not protected workplace rights...

Court Disposition

Appeal allowed in part; cross-appeal dismissed; damages to be adjusted; no order as to costs.

Orders

  • The appeal be allowed in part.
  • The cross-appeal be dismissed.