The Federal Court has ruled on a complex workplace dispute where a union delegate was summarily dismissed for conduct which, it was claimed, represented the exercise of protected rights.


The Applicant was employed at the Respondent’s port facility.  In addition to his regular job, the Applicant was a union delegate.  In that role he represented an employee who was being investigated by the Respondent for making comments which vulgarly asserted the existence of an improper relationship between a supervisor and a female worker.  The remarks had been overheard by another female employee who gave a written statement in the investigation.

The employee under investigation initially denied making the comments, but shortly afterwards he recanted and claimed that the Applicant had instructed him to lie.  Further, the employee who had given the written statement complained that the Applicant had been threatening and was abusive toward her.

The Respondent engaged an external consultant to prepare a report into the Applicant’s conduct.  After reading the report, the Respondent’s General Manager decided to summarily terminate the Applicant’s employment for serious misconduct.

The Litigation

The Applicant brought proceedings in the Federal Court.  He alleged that the circumstances did not justify summary termination and the Respondent had breached his contract of employment.  In addition, the Applicant alleged that the termination amounted to unlawful adverse action because the real reason for it was his activities as a union delegate.

The Fair Work Act 2009 (Cth) (the Act) makes it unlawful for an employer to take “adverse action” (which includes dismissal) against an employee because he/she is a union delegate.  The employer bears the onus of proving that the employee’s activities as union delegate were not a substantial or operative reason for the actions it took.

The Decision

The trial judge (Jessup J) found that the Applicant had instructed the employee to lie in the investigation and had abused/threatened the witness.

These actions were contrary to the implied term of good faith and fidelity in the contract of employment, and breached the employer’s written policies relating to the proper treatment of participants in a workplace investigation and the avoidance of bullying.  These breaches justified the summary termination of the employment.

The termination would nevertheless amount to unlawful adverse action if the substantial and operative reason for it was the Applicant’s activities as a union delegate.  So it was necessary for the Judge to examine the reason for the General Manager’s decision.

The Applicant alleged that he was a “dogged and determined delegate” who persistently raised issues, and that his activities had reached the stage where the General Manager was hostile towards him on account of his “ongoing activism”.

The trial Judge found that the General Manager was not irritated by the Applicant, nor did he want to get rid of the Applicant. Whenever the fact of any such irritation, or the like, was put to the General Manager, he denied it. The Judge recognised that such denials were very much in the company’s interests in the litigation, but they were credible and nothing in the evidence presented any reason to doubt the truth or sincerity of them.

The proceedings were dismissed.

What does this mean for employers and employees?

Although the conduct of industrial activities is protected under the Act, the protection does not apply where  conduct violates clear requirements of the employment relationship and where those transgressions represent the substantial and operative reason for the employer’s response.

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