Summary

A union delegate who also worked as a casino inspector had spoken to the media about the employer keeping them in the dark regarding staffing levels, wages, and conditions considering the impending shift in the casino’s ownership structure. The lawyer for Casino Canberra then sent the union delegate a notice that his speaking with the media did not meet the behavioural standards of the employer as his statements to the media constituted “spreading rumours and gossip” about the employer.

The lawyer further informed the casino inspector that he would undergo formal performance counselling. The casino inspector then filed a complaint in the ACT Civil and Administrative Tribunal for adverse action or unfavourable treatment in his employment because of his industrial activity.

Speaking with the press about working conditions is an industrial activity for which an employee cannot be treated unfavourably in his employment

A casino inspector who had been employed with a casino since 2003 was also a union delegate. The corporation owning the casino operated two casinos in two different locations. The employees at both casino locations were represented by one union and were under a single enterprise agreement.

Sale of the casino to a new corporation

In 2018, the casino began negotiating the sale of a majority of its shares to another corporation. With the sale, the ownership of the casinos would change. In 2019, the union made a formal request to begin negotiating a new enterprise agreement seeing that the casino would be under new ownership and the enterprise agreement would expire in June 2019.

Union concerns about future working conditions after the sale

The employees heard rumours that the new owners were planning to outsource the management of the casinos so that there will only be one manager of both locations of the casino. The union sought a meeting with the corporation who wants to buy the majority shares as well as the present owners of the casino to discuss the implications of the sale of shares on the working conditions and aspects of the jobs of the casino employees who were under an enterprise agreement.

Casino refused to provide information to or discuss with the union

The casino management refused to initiate discussions or bargaining for a new enterprise agreement until after the sale of shares had become final. The casino warned that any comments to the press by the union and its officers will be speculative as no decision on the enterprise agreement had yet been made because the corporations were still only discussing the final sale.

Union sought assurances that workers will not be disadvantaged after the sale

The union repeated its request to the two corporations, seeking assurances that the new owners would remain bound by the enterprise agreement in place and not outsource casino work to outside contractors, or implement forced redundancies or implement changes of hours or rosters that would reduce the pay of the casuals without negotiating a new enterprise agreement in good faith.

No assurances from the casino despite expiration of the enterprise agreement

The casino replied that it was premature for any discussion and that the new corporation will have its own right to make decisions regarding working conditions as required by the operational needs of the business as it saw fit. The union’s concern was that the enterprise agreement expired on 30 June 2019 and thus, it seeks assurances that the terms of the enterprise agreement will remain in place until a new enterprise agreement had been made.

Union inspector’s interview with a newspaper

The inspector was authorised by the union to sit for an interview with a newspaper where he made comments about employees being uninformed about the working conditions when the ownership of the casino shifted. The inspector was quoted in the article as saying that there must be a reason why the new owners refused to give an undertaking about working conditions.

Allegations against inspector of breach of employees’ code of conduct

Two days after the newspaper article had been published, the casino wrote that the inspector’s quoted comments in the article possibly breached the standard of behaviour required of employees because it misrepresented the communications that the casino had made to the union and its employees.

The casino alleged that by making those comments to the newspaper, the inspector spread or supported rumours or gossip about the employer, behaviour that is punishable under the code of conduct. The inspector was ordered to explain his behaviour or risk being placed under formal performance counselling. The inspector responded and the casino replied that with the explanation, it had decided not to continue with the performance counselling or any disciplinary action.

Complaint for discrimination with the Human Rights Commission

Just the same, the union filed a claim with the Human Rights Commission on behalf of the inspector for threatening the inspector as a result of his industrial activity. The HRC found that conciliation would be unlikely to resolve the conflict and referred the complaint to the Civil and Administrative Tribunal.

Referral and decision of the Civil and Administrative Tribunal

The Civil and Administrative Tribunal found that the inspector had been treated unfavourably in his employment because of his industrial activity. The Tribunal then ordered the casino to pay the inspector damages in the amount of $4000 and legal costs amounting to $4620. The casino appealed the decision finding it had discriminated against the inspector and the order to pay him damages and to pay legal costs.

Appeal by the casino

The casino appealed. It claimed that it had not treated the inspector unfavourably as a result of any industrial activity because sitting for an interview with a newspaper journalist cannot be considered as “industrial activity” that is protected. It also assailed the award of damages and legal costs as improper.

Definition of “industrial activity”

The interview with the newspaper is covered under the term “industrial activity” because the inspector had been authorised as a union delegate to attend the interview. The interview’s purpose was to express the concern of the employees about their jobs and the terms of their employment once the new owners of the casino start managing the casino. By doing the interview, the union publicised their concerns and applied pressure on the employer. The inspector was thus considered to have been engaged in “lawful activity on behalf of the union” and was representing or advancing the views, claims and interests of the members of the union—all of which fall within the definition of “industrial activity.”

Newspaper interview was to advance union interests

There was no reason to believe that the newspaper would have interviewed the inspector for any other role other than his role as a union delegate. The newspaper article stated as much: the inspector was a union delegate and someone who has worked at the casino for more than 16 years. Even in the inspector’s reply to the allegation letter sent to him by the casino, he stated that he participated in the interview to represent the views and concerns of the union members. The interview was an industrial activity.

Inspector treated unfavourably, subjected to detriment

The casino acted in an adverse manner against the inspector when it alleged that he had breached the code of conduct, when it asserted that he will be disciplined for such breach. The requirement to respond to the allegations of improper conduct negatively impacted the inspector’s employment and his employment status. This is “unfavourable treatment” that subjected the inspector to detriment.

“Detriment” is any real disadvantage. The casino did not need to have treated the inspector comparably different from other employees. All that was necessary was for the inspector to have been exposed to any detriment or disadvantage.

Not a mere clarification

The casino did not merely seek clarification from the inspector about the things he had said in the newspaper interview. The manner of the casino in seeking clarifications from the inspector was what comprised the unfavourable treatment. The letter sent by the casino to the inspector was not a mere request made on an employee; it marked the beginning of a workplace investigation that involved a possible disciplinary action by the casino against the inspector. The tone and words of the letter gave the impression that regardless of how the inspector replied or responded to the allegations contained in the letter, the management will move toward either performance management and/or disciplinary action.

Casino’s action was causally connected with industrial activity

The allegation letter was clearly written in response to the publication of the newspaper article featuring the interview with the inspector. The inspector participated in the interview only after the enterprise agreement expired in June 2019. At that time, even when the enterprise agreement had already expired, it continued to operate until it was replaced by a new enterprise agreement. It was for this reason that the union sought assurances and undertakings that the wages and working conditions of the employees will be preserved by the new owners.

The interview was all about the Enterprise Agreement and the anticipated completion of the sale. Whilst the allegation letter concerned the inspector’s responsibilities and obligations as an employee, its timing and content were prompted by the published interview of the inspector that comprised his statements as a union delegate and which concerned industrial activity.

Was the award of damages to the inspector proper?

The decision of the Tribunal was an exercise of discretionary power. To assail the award of damages, there must be evidence that the Tribunal: acted upon a wrong principle or gave weight to irrelevant maters, or failed to account some material consideration, or failed to give weight to a relevant consideration, or made a mistake in the facts, to make its award unreasonable or plainly unjust.

The correspondence between the casino and the inspector put the inspector in fear of his employment being disadvantaged. He thought he was going to be placed on performance management as a disciplinary action. He was convinced that the casino viewed him to have acted inappropriately and it made him hesitant to raise union concerns in the future. The amount of the award was discretionary on the part of the Tribunal, and there was no evidence that the exercise of discretion was unreasonable or unjust.

Was the award of legal costs proper?

The casino presented as witness its own in-house counsel. The same person acted for the casino in the role of solicitor and as a witness during the proceedings. The in-house counsel was the legal officer in the casino that had dealings with the inspector. This unusual situation gave reason for the inspector and the Tribunal to be concerned whether the hearing ought to continue. This gave rise to the adjournment to another hearing date. There is no evidence that the order for payment of legal costs was made by the Tribunal beyond its power or beyond the scope of legislation. The amount ordered to be paid was reasonable.

The appeal by the casino was dismissed.

Source:

Casino Canberra Limited ACE 051 204 114 v Kidman (appeal) [2022] ACAT 22 (18 March 2022) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/act/ACAT//2022/22.html