Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 4)

The applicants, the Construction, Forestry, Mining and Energy Union and two individual union officials, brought proceedings against BHP Coal Pty Ltd (the respondent) in the Federal Circuit Court. The applicants claimed that the respondent had taken adverse action against them, namely dismissing the officials from their employment, in contravention of section 346 of the Fair Work Act 2009 (Cth). The applicants sought orders for the respondent to reinstate the officials to their positions and to pay compensation for the loss of income and legal costs. The central issue before the court was whether the dismissals of the officials constituted adverse action under section 346 of the Fair Work Act and whether such action was taken for a proscribed reason, specifically, their protected industrial activity. The court needed to consider the evidence and arguments presented by both parties to determine if the respondent had discharged its onus of proving that the dismissals were not taken for a proscribed reason.

The court found that the dismissals of the officials did constitute adverse action under the Fair Work Act, as defined in section 346. The court also noted that there was a presumption under section 361 of the Act that the adverse action was taken for a proscribed reason unless the respondent could prove otherwise. The court examined the evidence presented by both parties, including the internal investigation conducted by the respondent, the separate District Court defamation proceedings, and the credibility of the witnesses involved. The court found that the respondent had failed to discharge the onus of proving that the dismissals were not taken for a proscribed reason. The court was particularly critical of the unexplained harsh treatment of the officials three years after the relevant conduct, the failure to consider the contemporaneous internal investigation, and the failure to consider the significant number of unsubstantiated complaints made by the third employee.

The court concluded that the dismissals of the officials were taken for a proscribed reason, and therefore, constituted adverse action under the Fair Work Act. The court ordered the respondent to treat the termination of employment of the officials as null and void, and to reinstate them to their positions. The court also ordered the respondent to pay compensation for the loss of income and legal costs incurred by the applicants.