Union delegate spoke to the press, then faced possible counselling

What happened

Bryan Kidman had worked at Casino Canberra since March 2003, and full time as an inspector since November 2008. He was also a delegate of the casino staff's union, then called United Voice.

In December 2018 the casino told staff that a company called Blue Whale Entertainment had agreed to buy a majority shareholding in the casino's owner. After the casino's enterprise agreement passed its nominal expiry date on 30 June 2019, the union asked to start bargaining; the casino preferred to wait until the sale was complete. The union asked the buyer for undertakings that wages, jobs and rosters would be protected, and the buyer said it was premature to give any.

According to Mr Kidman, in early August 2019 the union's media team contacted The Canberra Times, which interviewed him. The article, published on 6 August 2019, reported him as saying that employees were in the dark about staffing levels, wages and conditions. It quoted him: "If they won't give us an undertaking about the conditions, then there must be a reason for that."

The letter

Two days later the casino's compliance manager, who was also its in-house lawyer, wrote to Mr Kidman. The letter said the casino was concerned that one comment might breach the employee handbook rule "Do not spread or support rumours/gossip", and that another misrepresented what management had told staff.

It asked him specific questions, set a deadline of 5pm on 15 August, and enclosed the casino's performance counselling and discipline policy. Under the heading "Way forward", it said he might be found not to have met the casino's standards and that the matter might proceed to formal performance counselling. If he did not respond, the casino would proceed on the information it had.

Mr Kidman answered on 14 August. On 16 August the casino told him it was not necessary to take the matter to performance counselling. By then the union had lodged a discrimination complaint for him with the ACT Human Rights Commission, which was later referred to the ACT Civil and Administrative Tribunal.

What the tribunal decided

On 6 July 2020 the tribunal found that the casino had discriminated against Mr Kidman because of his industrial activity. It ordered the casino to post the orders on staff notice boards for 14 days, pay him $4,000 in general damages and pay $4,620 of his legal costs.

On appeal, on 18 March 2022 the Appeal Tribunal (President Neate and Member McGlynn) dismissed the appeal on every ground.

Why: the legal test

Under the Discrimination Act 1991 (ACT), industrial activity is a protected attribute (s 7). Direct discrimination means treating someone unfavourably because they have a protected attribute (s 8(2)). Section 10(2)(d) makes it unlawful for an employer to subject an employee to "any other detriment" in that way. There were three questions.

Was the interview industrial activity? The Act defines industrial activity to include taking part in a lawful activity organised by a union and representing the views of union members. The casino argued there was no independent proof he spoke for the union. The Tribunal pointed to his evidence that the union's media team set up the interview, and said it was reasonable to infer the newspaper would not have interviewed him other than as a union delegate.

Was he treated unfavourably? This test does not compare him with other employees; it asks only whether the treatment was disadvantageous. The casino said it simply wanted clarity. The Tribunal said the problem was not that the casino asked questions "but the way in which it sought those responses". The letter flagged a possible breach and foreshadowed performance counselling or discipline. Mr Kidman said he recognised it as the start of a disciplinary process, became very stressed and had trouble sleeping.

Was it because of his industrial activity? Under s 4A(2), industrial activity only had to be one reason, not the dominant one. The letter was written in response only to the article, and had the interview not happened, the casino would have had no reason to write it.

The damages and the costs

Mr Kidman accepted that the effect on him was "minimal". He kept working and took no sick leave, which the Tribunal said showed the effect was not severe. But that did not mean he suffered no detriment, and $4,000 was not out of line with other awards.

The costs order arose because the casino's in-house lawyer acted as both its advocate and its only witness at the first hearing. The hearing was adjourned so the casino could get independent lawyers, and the casino had to pay the $4,620 the delay cost Mr Kidman.

What this means for you

This was an ACT case, but federal law has a similar rule. Most private sector employees in Western Australia are covered by the Fair Work Act 2009 (Cth), and its general protections (s 346) make it unlawful to take adverse action against an employee because they engage in industrial activity, which includes taking part in lawful union activities and representing a union's views. Under that Act the question is the employer's actual reasons, and the employer must prove that a protected reason was not one of them.

If you are a delegate and receive a letter like this after speaking up for members, keep a copy and consider getting advice early. For employers, the Tribunal noted that the matter was resolved within eight days and suggested that simply seeking clarification, rather than raising a possible disciplinary process, might have avoided the complaint.