8th February 2022

In a broad case challenging the dismissal of two union employees and elected officials from their employment with the Construction & General Division of the Construction, Forestry, Mining, Maritime and Energy Union (“CFMMEU”), the Federal Court of Australia (Perram J) has observed that a “dismissal” for the purposes of the Fair Work Act 2009 (Cth) (“FW Act”) “does not require the employer to pull the trigger but only to load the gun”.

Accordingly, a decision by the Divisional Executive of the CFMMEU to remove the employees from their elected positions, which consequently caused their employment to be terminated with the CFMMEU, was found to constitute a “dismissal” for the purposes of section 386(1)(a) of the FW Act.

In Quirk v Construction, Forestry, Mining, Maritime and Energy Union [2021] FCA 1587, the applicants – Mr Andrew Quirk and Brian (Jock) Miller – commenced proceedings against the CFMMEU, alleging that the union breached the General Protections provisions of the FW Act and, in the alternative, breached their contracts of employment, when their employment ended following the pair’s airing of corruption allegations to the ABC’s 7.30 report and the Sydney Morning Herald.

The pair were successful in their initial argument that they had been “terminated on [their] employer’s initiative”, such that they had been “dismissed” pursuant to section 386(1)(a) of the FW Act, over the contention of the CFMMEU that their employment had not come to an end by its hand, but had “ended by operation of law at their removal [from their elected positions]”.

Relevantly, the Court found that, for a person to be “dismissed” under the FW Act, “the legal event that ended the relationship [should] be that of the employer’s”. Accordingly, whilst it was the case that Mr Quirk and Mr Miller’s removal from their “coterminous” elected positions caused their employment to end, such termination was at the initiative of the CFMMEU.

As Perram J put it: “[Section 386(1)(a) of the FW Act] does not require the employer to pull the trigger but only to load the gun”.

However, Mr Quirk and Mr Miller were ultimately unsuccessful in their claims under the FW Act, with such causes of action failing on other bases.

The pair alleged that the CFMMEU had contravened sections 340 and 351 of the FW Act on the basis that the union had dismissed them from their employment:

• because they had made a complaint in relation to their employment; or
• because of their political opinion,

respectively.

The Court, instead, found that the CFMMEU had dismissed Mr Quirk and Mr Miller for non-prohibited reasons – including their public denigration of, and disloyalty to, the federal union. Such reasons, the Court found, could be disassociated from allegations that the real and operative reasons were those raised by the applicants.

In doing so, Perram J also made the following pertinent observations:

• the expression of a political opinion could found a basis for protection from discrimination for the purposes of section 351(1) of the FW Act, if such expression could be characterised as a ‘manifestation’ of the employee’s (or a prospective employee’s) political opinion;
• the act of whistleblowing to the media would not constitute a “complaint” within the meaning of section 341(1)(c)(ii) of the FW Act  (at [288]-[296]), on the basis that the applicants lacked an identifiable legal entitlement to complain to the media (such that the applicants were not “able to make” a complaint for the purposes of section 341(1)(c)(ii) of the FW Act).

The applicants ultimately found success in their claims based on breach of contract. Accordingly, the Court ordered the CFMMEU to pay to each of Mr Quirk and Mr Miller damages of $189,428.59, plus interest.

What Should Employers Do?

In light of this decision, employers should be advised that:

• permitting an employee’s employment to end can give rise to a dismissal under the FW Act, even if the employer was not directly responsible for the legal event causing the termination;
• careful attention should be given to the conduct of human resources or senior management when decisions are made that would irresistibly lead to the cessation of an employee’s employment; and
• the prohibition against adverse action being taken because of an employee’s political opinion is capable of being enlivened if an employee’s expression of such opinion can be characterised as a “manifestation” of their political opinion.

For more information or if you require advice and assistance regarding the above, please contact our Harmers team on +61 2 9267 4322.