A 3:2 majority of the High Court has dismissed an appeal from a decision of the Full Federal Court relating to the dismissal of an employee engaged in industrial action who held a sign that read ‘No principles, SCABS, No guts’ which was deemed to be ‘offensive’ and contrary to BHP’s code of conduct. Sections 346 and 347 of the Fair Work Act 2009 (Cth) provide that an employer must not take adverse action against a person because they are an officer or member of a union or on the basis of involvement in industrial activity. Section 361 creates a presumption that the employer’s adverse action is taken because of the protected industrial activity. A majority of the FCAFC allowed an appeal against the ruling of the primary judge, holding that because the reasons for the employee’s dismissal extended beyond the use of the sign (his ‘arrogance’, that waving the sign was contrary to company policy, and that it was ‘antagonistic to the culture’ that the company ‘sought to develop’ at the mine), the causal connection between the employee’s conduct and his dismissal had not been established, and the onus in s 361 had been discharged.

A majority of French CJ, Kiefel J and Gageler J dismissed the appeal. French CJ and Kiefel J reiterated the Court’s ruling in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] [2012] HCA 32 that s 346 does not require the court to examine whether the adverse action is ‘connected’ with industrial action, but only to make a determination of fact on the reasons for which the action was taken. Here, the primary judge had found that the employer was not motivated by a consideration the employee’s involvement in industrial action but rather the nature of his conduct and what it represented about him as an employee: [21]. Those findings should have concluded the inquiry: [22]. Gageler J likewise held that the totality of reasons for the dismissal did not include participation in the protests or the advancement of the views of the Union (which would be contrary to sub-ss (b)(iii) and b(v)): [90].

Hayne J and Crennan J dissented in separate judgments. Hayne J held that no distinction could be drawn between the activity of protest and the manner in which the employee protested (at [45]ff) or between the act of advancing the interests of the Union and the manner in which it was done ([51]). Crennan J held that the circumstances and conduct surrounding the dismissal made the employer’s assertion that the employee’s engagement in industrial action was unrelated to the decision ‘unreliable’ (at [67]), and the primary judge was entitled to draw that inference: [68].