Overstepping the Mark: When Unions Act Too Far
In our last post, we looked at the importance of properly investigating allegations in the case of Amiatu and Others v Toll Ipec Pty Ltd. This case is also a significant commentary on union representation, and what can happen when a union official oversteps the mark. Even though unions are charged with acting in employees’ best interests, there can also be negative repercussions for employers if unions act without authority.
In the Toll case, three employees had discovered an open box containing Toll safety uniforms. They put on some of the uniforms, going about their normal duties and making no attempt to cover up having taken them. When the company became aware that the workers had taken the uniforms, it informed the union that it believed that the employees had committed theft and that it intended to terminate their employment and report the matter to the police. The union organiser persuaded Toll to allow the employees to resign.
The employees had been filmed by surveillance cameras. When the employees raised the possibility of an unfair dismissal claim, the official told them that the video evidence was far too strong, and that they had “no hope” of succeeding.The official then assisted them to write out their letters of resignation. The employees subsequently made a claim for unfair dismissal in the Fair Work Commission (FWC).
The FWC findings
The FWC found that the union official had made the deal with the company without the employees’ authorisation. The company had agreed, and then the official met with the workers, saying that their two options were to resign or to be sacked and face police involvement. The commission also found that they had been coerced into resignation by this threat of police involvement and poor future work prospects. There had been no intention by the workers to steal the uniforms. Reprimands or warnings would have been more appropriate disciplinary action.
The FWC was concerned that the union had so strongly encouraged the employees to resign when they had done nothing wrong. This effectively deprived them of adequate representation. The union official “was acting as an advocate of a proposed course of action which he had invented and which had been negotiated by him, accepted and agreed by Toll, in Toll’s best interests.” But the union official’s duty was to act in the best interests of the workers.
This case serves as a warning to employers to tread very carefully when dealing with union involvement in disciplinary matters. The FWC made it very clear that the official had overstepped the union’s authority in negotiating an outcome for the employees before even discussing it with them. He was so swayed by the video footage and the threat of police involvement that he forgot the crucial steps of getting the employees’ version of events, assessing the evidence and acting in their best interests. This approach also caused another significant problem – Toll reasonably thought that it had negotiated an outcome because it was dealing with the employees’ representative, only to discover that the employees were taking legal action.
The lesson for employers is to be very cautious about negotiating a matter with a union when the employee is not present. Any agreement made should be checked with the employee to ensure the employee is making the decision freely. Employers should be careful not to say or do anything that might later be construed as having pressured the employee to make their decision, for example, a threat to make a police report. As the FWC noted, “It would have been open to [the company] to simply advise [the union official] that the Applicants could make up their own minds whether to resign their employment.”
This simple step may have allowed the company to successfully defend the unfair dismissal claim. When unions overstep the mark, there can be difficult and expensive ramifications for the employer. When in doubt about how to negotiate with a union, we recommend seeking the help of an experienced workplace consultant.