Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2013] FCA 1097

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2013] FCA 1097

The respondent’s adverse actions, including dismissal of Mr Crompton, were taken because decision-makers concluded Mr Crompton had engaged in serious misconduct by improperly directing co-workers and in the physical and verbal abuse of a co-worker, not because of his union membership or industrial activity. The...

Source-derived case information.

Parties
Applicant: Construction, Forestry, Mining and Energy Union; Respondent: BHP Coal Pty Ltd (ACN 010 595 721)
Jurisdiction
Australia
Judgment Date
24 October 2013
Procedural Posture
Application Under Fair Work Act 2009 (cth) – Adverse Action / Final Judgment
Outcome
Application dismissed
Legal Topics
Adverse Action, Dismissal, Serious Misconduct, Industrial Activity, Workplace Rights, Union Activity
Industrial Law Employment Law Adverse Action Dismissal Serious Misconduct Industrial Activity Workplace Rights Union Activity

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Parties

Construction, Forestry, Mining and Energy Union

Applicant

BHP Coal Pty Ltd (ACN 010 595 721)

Respondent

Procedural Posture

Application Under Fair Work Act 2009 (cth) – Adverse Action / Final Judgment

Legal Issues

  1. 1 Whether the respondent took adverse action against Mr Crompton (by dismissal and/or stand-down), contrary to s 346 of the Fair Work Act 2009 (Cth), because he was a union officer/member or engaged in industrial activity, or for another reason
  2. 2 On whom the burden of proof lay regarding the reason for the adverse action under s 361

Ratio Decidendi

The respondent’s adverse actions, including dismissal of Mr Crompton, were taken because decision-makers concluded Mr Crompton had engaged in serious misconduct by improperly directing co-workers and in the physical and verbal abuse of a co-worker, not because of his union membership or industrial activity. The respondent discharged the onus under s 361, establishing that no prohibited reason under the Act was operative. Accordingly, the contraventions of s 346 were not established and the application was dismissed.

Court Disposition

Application dismissed

Orders

  • The application filed 18 July 2011 be dismissed.