THE Fair Work Commission has ruled that employers must consider dismissal on a case-by-case basis after a construction company was found to have unfairly dismissed an employee involved in unlawful industrial action under unique circumstances.

In an incident occurring at a Queensland construction site last year, an employee was summarily dismissed from his position as a crane driver after engaging in a union meeting deemed to be unlawful industrial action.

The meeting was organised by the Construction, Forestry, Mining and Energy Union (CFMEU) after an earlier conference ran over time, leading Bechtel to dock attendees four hours’ pay on grounds the meeting was not authorised.

The following day, the driver and five other employees received a notice of termination, stating unlawful industrial action as the reason.

The employee argued that he had not engaged in unlawful industrial action as suggested by the employer as he was making no demands, nor was he involved in enterprise bargaining of any kind, but Commissioner Susan Booth disagreed.

“I conclude that the Applicant was participating in unlawful industrial action because he failed to perform duties before his permitted clean up and break time; he knew by observation that a CFMEU organised meeting was in progress; he joined those participating in the meeting, standing near the CFMEU organiser; and he observed the business of the meeting,” Cmn Booth said.

However, Cmn Booth also added that unlawful industrial action alone did not constitute a valid reason to dismiss the employee, pointing to a failure on the employer’s behalf to consider individual circumstances.

“[Participation in unlawful industrial action] may give rise to a legal right to terminate but that is different from establishing, through proper inquiry into the factual circumstances, whether there was a valid reason for the termination,” she said.

Cmn Booth noted the employee was unaware of the meeting or its purpose until after it had commenced, making his position unique to the five other employees dismissed in the same instance. She also added that the employee had not been offered an opportunity to respond to the reasons for termination.

“An opportunity to respond is meaningless unless the employer gives proper contemplation to and consideration of the responses,” Cmn Booth said.

“It is not just whether the Applicant participated in unlawful industrial action that should have been considered, but whether there were any unique circumstances applying to the Applicant. There were. They were not adequately considered.”

To read the decision in full, click here.

Implications for Employers

In this case, Commissioner Booth emphasised the importance of considering individual circumstances before terminating employment in place of applying a ‘formulaic’ response to workplace issues.

Given the complexity of dismissal and the risk of dispute, AMMA members are encouraged to heed the Commissioner’s advice and give adequate consideration to each employee before issuing a notice of termination. The full procedures for disciplinary actions should also be outlined in the organisation’s workplace policy so employees are informed of expectations pertaining to their conduct.

However, it also important that both employees and employers follow the organisational policies stringently.

In the notice of termination, the employer highlighted to the employee that the company was ‘committed to dealing with matters validly raised by employees under the disputes procedure’ and that the ‘taking of unlawful industrial action is not acceptable and will not be tolerated’. However, it did not indicate that unlawful industrial action would lead to termination.

The Commissioner in this instance censured the employer’s failure to communicate such a critical policy change, providing other grounds to rule against the company.

Dismissal and industrial disputes can be difficult territory to negotiate, which is where AMMA’s workplace relations experts can provide assistance. Contact your local AMMA office and speak to one of our workplace relations consultants for information and advice on managing workplace issues.