Should someone fear termination for standing up for not just their rights but the rights of their colleagues?
Mr Doevendans’ employment was terminated after he was seen protesting at the entrance to the mine site with a sign that read “No principles, SCABS, no guts!” Mr Doevendans was the Vice President of the Lodge, a local branch of the CFMEU, and the protest was about negotiations for a new enterprise agreement.
Justice Jessup in the Federal Court ordered the reinstatement of Mr Doevendans into his position after he concluded that his dismissal was in breach of the general protections provisions of the FWA.
Although BHP argued that the use of the offensive word ‘scab’ made his conduct unlawful and therefore not covered by these protections, ultimately Justice Jessup found it was not unlawful, and even if it was, this was irrelevant so long as the protest itself was lawful.
Although Mr Doevendans argued that he was dismissed due to his position as an officer in an industrial association, Justice Jessup found that this was not true. He also rejected the argument that he was dismissed for participation in industrial action as Mr Doevendans was not participating in the work stoppages on that day as he was not rostered on to work.
However, the Full Court of the Federal Court overturned this and found that the reason Mr Doevendans was dismissed was actually because the use of offensive language on the sign which was against BHP’s company policy.Furthermore, his ‘antagonistic’ conduct throughout the investigation was contrary to the culture BHP was seeking to develop. The court therefore confirmed that an employee is not protected from adverse action simply because the reason for it was closely related to industrial action, if that reason was not the action itself.