Maurice Blackburn - Maurice Blackburn has workers reinstated in adverse action cases
22 November 2012
Maurice Blackburn recently ran two cases in the Federal Court of Australia where employers dismissed union activists and the court ordered the reinstatement of the employees pending final hearing. We take a look at what constitutes 'adverse action', and explore these cases in detail.
Workplace rights and adverse action
Employees have workplace rights and protection against adverse action by their employer. This means an employee can't be harmed by their employer because they have exercised a workplace right.
A workplace right includes making a complaint or inquiry in relation to an employee's employment. These are whistleblower-type protections that apply to all employees, irrespective of someone earns.
Under the Fair Work Act 2009, adverse action includes termination of employment, changing an employee's conditions to their detriment, disciplinary action and discrimination.
The Act includes employers not being allowed to pretend employees are contractors when in fact they are employees. Employees also can't be dismissed from their employment because they were temporarily absent from work (up to three months across one year).
Many matters in which Maurice Blackburn acts settle before litigation. However, if a matter does go to court, it is up to the employer to prove that it did not take adverse action against the employee because the employee exercised a workplace right.
It is important to note that time limits apply in making applications so get advice as soon as possible.
Parcel delivery driver reinstated
In CEPU v Dee Vee Pty Ltd  FCA 988, a parcel delivery sub-contractor to Australia Post, Dee Vee Pty Ltd (Dee Vee), dismissed one of its delivery drivers. Immediately before the dismissal, the driver had joined Communications Division of the CEPU. Dee Vee claimed that that the driver was an independent contractor.
The driver asked the CEPU for help with underpayments of wages and superannuation. The CEPU notified a dispute over these issues in Fair Work Australia (FWA). The dispute was conciliated before FWA on 15 August and 22 August 2012. On 24 August 2012, Dee Vee terminated the delivery driver's engagement.
The CEPU applied to the Federal Court of Australia for an interim order to have the delivery driver reinstated to his former position. The CEPU alleged that the termination of the driver's engagement was adverse action because of his union membership, his participation in industrial activity and his involvement in the FWA dispute proceeding.
On 3 September 2012, Justice Tracey ordered, pending the final determination of the proceeding, that the delivery driver be reinstated to the position he had held immediately before the termination of his engagement and that Dee Vee is restrained from terminating the driver. Justice Tracey noted that while there had been "long standing reluctance" by the courts to order specific performance of a contract of employment, this "reluctance has eased with the introduction of statutory provisions".
The case is important because it shows reinstatement is a realistic outcome in adverse action cases. It also shows that workers who may be independent contractors also have rights under Fair Work Act adverse action rules.
Shop steward reinstated at McCain
In AMWU v McCain Foods (Aust) Pty Ltd  FCA 1126, a shop steward was dismissed after McCain Foods (Aust) Pty Ltd (McCain) claimed that he had acted inappropriately towards a manager by bullying him. The shop steward denied any inappropriate behaviour. Importantly, the complaint against the shop steward occurred immediately after the shop steward met with management in order to make a complaint against the manager on behalf of another union member. McCain engaged an external investigator to assess the allegations against the shop steward. McCain suspended the shop steward and then terminated him on the grounds that the allegations against him were substantiated.
The AMWU, on behalf of the shop steward, applied to the Federal Court of Australia seeking an interim injunction to reinstate the shop steward. The AMWU's argument was that McCain had dismissed the shop steward on the basis of his activity as a union activist and delegate. McCain resisted the application for an injunction, arguing that the shop steward could not be reinstated to his former position because he posed a health and safety risk to the manager who made the allegations.
Justice Bromberg found that "it is strongly arguable that an association existed between the industrial activity in which [the shop steward] engaged and the adverse action taken to dismiss him. The question will then be whether such an association was an operative factor in McCain's decision to take adverse action".
Justice Bromberg held that the shop steward should be reinstated to a position in another part of the plant where contact with the manager was minimal. The shop steward, however, would be permitted to continue in his role as employee representative. Commenting on this, Justice Bromberg stated: "much of the effectiveness of a shop-floor delegate is dependant upon being on the shop-floor".
The shop steward was given a heroes welcome by his fellow McCain workers when he returned to work.
The case will continue in the Federal Court next year. The case is important because, like the CEPU v Dee Vee case, it also shows reinstatement is a realistic outcome in adverse action cases. It is also important because it will test whether employers can use external investigators to shield themselves from adverse action claims when delegates are terminated.