In a blog post on Hall and Wilcox’s website, partner Karl Rozenbergs and lawyer Gemma Hallett noted that employers are expressively forbidden under the Fair Work Act from taking adverse action against an employee because they sought to be represented by their union.
“Adverse action can include dismissal, discrimination, demotion, suspension, issuing warnings and commencing disciplinary processes,” they noted.
According to the lawyers, a key aspect of union involvement in disciplinary meetings involves whether the person is there simply as the employee’s support person or as their union representative.
They advise that employers should seek to clarify this before any such meeting commences.
“Employers who confuse the role of a union representative with that of a support person risk significant legal consequences,” they wrote.
What can go wrong for employers?
Mr Rozenbergs and Ms Hallett referred to the case of Vong v Sika as highlighting exactly why employers should make this differentiation from the outset.
While the case precedes the Fair Work Act — which as the Fair Work Ombudsman notes was implemented gradually from 1 July 2009 through to “around 2014” — it still sets an important precedent for employee dismissals where a union has been involved.
“When the employee Vong was called into a disciplinary meeting, he brought a union official with him. The employer’s HR manager asked the union official to sign a document which required him to act as an observer, rather than as a representative. The union official refused to sign, and stated that he was there to act as Vong’s union representative,” they wrote.
“An argument ensued, and the HR manager told the union official to leave the premises and terminated the meeting. The same thing occurred at the next two meetings. At the third meeting, the HR manager left the room and returned with a notice of dismissal.
“Vong argued that he had been unfairly dismissed because he was a union member. Vong’s claim was successful, on the basis that his employer effectively forced him to relinquish his right, as a union member, to be represented by the union. The employer was ordered to reinstate Vong, compensate Vong for lost wages, re-credit his leave entitlements and pay a penalty to the union.”
Making, and sticking to, this differentiation
Making the distinction is one thing, but in a potential heated meeting, it is entirely possible for a union support person to want to step in and become more than just an observer.
“If a union official who is acting as a support person starts to act more like a union representative during the meeting, you should consider pausing the meeting to remind them of their role, and record this in your notes,” they wrote in the post.