“Scabs- no guts”: workplace abuse or freedom of speech?

21 October 2014

In an important decision, the High Court has upheld the sacking of a miner who waved a sign that stated: “No Principles – Scabs – No Guts”.

The unionist, who worked as a machinery operator at the mine for 24 years, was fired after waving the sign at a CFMEU rally.

The CFMEU claimed the dismissal was a breach of the Fair Work Act which states an employer cannot fire a worker for participating in industrial activity.

The company said that waving the sign was in violation of its workplace conduct policy that states workers should respect fellow employees.

The mine manager said the conduct was not only contrary to the policy, but antagonistic to the culture that he was endeavouring to develop at the mine. It was argued that the unionist was well aware of the policy and demonstrated arrogance when confronted with objections to his conduct.

However the High Court dismissed an appeal by the union against a Federal Court Ruling that upheld the company’s decision to fire the worker.

The High Court sided with the company stating it is “incorrect to conclude that, because the employee’s union position and activities were inextricably entwined with the adverse action, the employee was therefore immune, and protected, from the adverse action”.

General Secretary of the CFMEU Andrew Vickers said the decision was a “blow” to workers’ freedom of speech.

Australian Mines and Metals Association’s executive dir¬ector, policy, Scott Barklamb said using offensive language at a picket line was akin to workplace bullying.

“Industrial hate speech like ‘scab’, ‘dog’ and ‘mongrel’ must become as unacceptable in our society as insults and discrimination based on race, sex and religion,” he said.

“Times have changed: industrial abuse belongs in the dustbin of history.”

The full ruling can be accessed here

 

Consulting

In this case, the company’s workplace conduct policy was key to its High Court victory.

HR policies and procedures establish and document your organisation’s expectations, standards and responsibilities. Clear procedures guide managers and employees through the practical application of policies.

iHR Australia advises that well-documented policies and procedures are also tangible evidence that your organisation has taken reasonable steps to minimise business risks and unlawful practice or behaviour.

iHR Australia can design and develop individual policies and procedures or employee handbooks specifically tailored to your organisation’s needs.

iHR Australia provides engaging workplace training which features professional actors. Courses include EEO, Anti-bullying, Harassment and Discrimination training and Selection and Interviewing Skills training. Call 1300 884 687 or make an online enquiry to find out more.

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