The Case

Sayed v Construction, Forestry, Mining and Energy Union (2015)

Mr Sayed was employed by the Construction, Forestry, Mining and Energy Union (CFMEU). He was a member of the Socialist Alliance, a coalition of Australian socialist groups, and advocated their views.

The CFMEU had hired Mr Sayed as part of an alliance with the Australian Workers Union (AWU), under which both parties would contribute one organiser for the Rio Tinto operations in WA. The AWU complained to the CFMEU that Mr Sayed was a “trot” who was undermining the AWU to its members. The CFMEU redeployed Mr Sayed to Queensland and later suspended his employment after discovering that he had lied about resigning from the Socialist Alliance. Then, following an internal investigation, the CFMEU terminated Mr Sayed’s employment because he had allegedly posted derogatory comments on Facebook.

The Verdict

The Federal Court found the CFMEU breached the Fair Work Act 2009 (Cth) general protections provisions when it took the following adverse action against Mr Sayed because of his expressed political opinions as a member of the Socialist Alliance:

• moving him from WA to Queensland;
• suspending his employment; and
• terminating his employment.

The CFMEU argued that the reason for the redeployment was that Mr Sayed was critical of the AWU, which it was trying to build a relationship with. However, the Court found that the substantial and operative factor for the decision was Mr Sayed’s relationship with the Socialist Alliance.

The Court also found this to be the reason for Mr Sayed’s suspension and termination. While the CFMEU was angry that they had been lied to about Mr Sayed’s resignation from the Alliance, the Court found that this was not the substantial and operative reason for their actions. Rather, it was the CFMEU’s belief that Mr Sayed’s political persuasion meant he could not be relied on to undertake work for the respective unions. The Court was not convinced that the same action would have been taken if Mr Sayed’s lie had been about something different.

The Court awarded Mr Sayed $3,000 for hurt, humiliation and distress. It left it to the parties to attempt to resolve compensation for lost earnings, suggesting that Mr Sayed should be compensated for between 3 and 6 months’ work.

The Lesson

Prior to taking any action detrimental to an employee’s employment in relation to misconduct in an industrial context, be careful to analyse those actions to ensure that they do not breach the general protections provisions.

Remember that if you are required to defend a general protections claim, the reverse onus of proof applies, i.e. rather than the employee having to provide proof of their claim, you have the burden of proving that the complaint is not justified.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.