Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 4) [2013] FCA 762

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 4) [2013] FCA 762

The respondent has not discharged its onus to prove that the adverse action against Mr Adams and Mr Winter was not taken for a reason prohibited by the Fair Work Act. The evidence, including unexplained harsh treatment, failure to consider earlier investigations, and involvement in relevant litigation, supports that their dismissal was at least partly because they were officers of an industrial association engaging in protected industrial activity. Therefore, the dismissal constituted unlawful adverse action under s 346 of the Fair Work Act.

Jurisdiction
Australia
Judgment Date
02 August 2013
Procedural Posture
Civil / Final Judgment
Outcome
Declaration and orders made for applicant
Legal Topics
['adverse Action' 'dismissal' 'union Membership' 'protected Industrial Activity' 'workplace Misconduct' 'fair Work Act']
['industrial Law'] ['adverse Action' 'dismissal' 'union Membership' 'protected Industrial Activity' 'workplace Misconduct' 'fair Work Act']

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Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 ['Whether the dismissal of Mr Adams and Mr Winter constituted adverse action under s 346 of the Fair Work Act 2009 (Cth)' 'Whether the conduct of Mr Adams and Mr Winter was unlawful workplace bullying or harassment' 'Whether adverse action was taken for a proscribed reason under the Fair Work Act 2009 (Cth)']

Ratio Decidendi

The respondent has not discharged its onus to prove that the adverse action against Mr Adams and Mr Winter was not taken for a reason prohibited by the Fair Work Act. The evidence, including unexplained harsh treatment, failure to consider earlier investigations, and involvement in relevant litigation, supports that their dismissal was at least partly because they were officers of an industrial association engaging in protected industrial activity. Therefore, the dismissal constituted unlawful adverse action under s 346 of the Fair Work Act.

Court Disposition

Declaration and orders made for applicant

Orders

  • ['The respondent has contravened s 346 of the Fair Work Act 2009 (Cth) in respect of Kevin Adams by terminating his employment because he is and was an officer of an industrial association.' 'The respondent has contravened s 346 of the Fair Work Act 2009 (Cth) in respect of Justin Winter by terminating his...