Dismissal of an Anti-Lockdown Protestor is Harsh

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Dismissal of an Anti-Lockdown Protestor is Harsh, is a question we are getting asked on a regular basis. Public protests are manifestations of dissent and an expression of the urgent need to change policy. Protests work because protestors can demonstrate the importance of a belief to society at large and let their government understand their concerns. Throughout the years, many people have attended protests and rallies about climate change, black lives matter, freeing the refugees etc. There have been overwhelming concerns that the public has had in our history and their disapproval of the government’s response in respect of these issues and so many feel that they have no choice but to head to the streets to protest.

However, the COVID-19 pandemic has sparked many anti-government and anti-lockdown protests, many of which are heavily criticised and frowned upon by the majority of people, particularly employers. For instance, across Australia, many people have assembled to protest the COVID-19 vaccine mandates in workplaces.

Although it has been recognized by Australian common law that the citizens of Australia have the right to participate in public assemblies of their particular concern or interest, such public assemblies are governed by laws that are meant to ensure that such events are peaceful and do not erupt into violent emotional displays of interest. While the personal right to assemble exists, it does not necessarily transcend a person’s obligation to their employer and under their employment contract. 

In the unfair dismissal case at the Fair Work Commission Chebbo v Major Crane Logistics Pty Ltd,[1] a mobile crane operator with Major Crane Logistics Pty Ltd (the Company) was terminated with immediate effect on 21 September 2021, after he attended a protest the previous day outside the office of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) in Melbourne.

Dismissed for being a principled employee

Was it serious misconduct?

The Company considered that Mr Chebbo had engaged in serious misconduct by attending the rally, which occurred in contravention of government stay-at-home orders, because his attendance brought the company into disrepute. It was also considered that Mr Chebbo had failed to comply with a lawful and reasonable direction following the closure of his worksite on the morning of the protest that he goes home. Mr Chebbo submits that he did not commit misconduct, because he was within his rights to attend the protest and did not participate in the violence that occurred that day, and because he had in fact been encouraged to attend the protest by the Company’s general manager. He denies that the company directed him to go home and submits that any contravention of the stay-at-home orders was not work-related but a matter between him and the authorities.

Deputy President Colman of the Fair Work Commission held that the protest was unlawful because the persons attending it did so in contravention of the stay-at-home directions made by the chief health officer under the Public Health and Wellbeing Act 2008, pursuant to which there were only five permitted reasons for a person to leave home. Attending a protest was not one of them.

Deputy President Colman held that Mr Chebbo was wrong to say that he was within his rights to attend the protest and that his attendance had no connection with his employment. Mr Chebbo’s attendance at the unlawful protest was found to have had several connections to his work.

First, the protest concerned arrangements for tearooms and vaccination requirements for construction workers, including Mr Chebbo. It was a protest relating to working conditions for the industry. In this regard, it may be distinguished from some of the other protests that have occurred in contravention of the stay-at-home laws.

Secondly, Mr Chebbo attended the protest on the company’s time. Although Mr Chebbo was not required to undertake work because of the closure of the Parkville site, he was still being paid.

Occurred during work hours

Thirdly, because the protest related to conditions of work in the industry, and because it occurred during working hours (the construction industry had remained open when most others were closed), Mr Chebbo’s presence at the protest could suggest to an observer that his employer endorsed or tolerated his presence at the protest, creating a reputational risk for the company. Those whose view of the company could have been adversely affected included current or potential clients, including the state government, as well as the CFMMEU, with which the company has an important relationship. Although Mr Chebbo was not wearing clothing bearing the company’s logo simply points to the absence of an aggravating circumstance, it was still possible for him to be identified as an employee of the company, because Mr Chebbo had worked in the industry for a long time and was well known.

Through the opprobrium of being associated with, a contravention of public health measures that were directed at curtailing the spread of the virus, particularly in a context where the construction sector had been subject to special arrangements and had been allowed to stay open when much of the economy was shut.

Further, attending this protest was found to not be like attending any ordinary protest for climate change or black lives matter and cannot be considered lawful industrial activity. Under the Fair Work Act 2009 (Cth) (the Act), industrial action means action of any of the following kinds:

  • the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice which results in a restriction, or limitation on, or a delay in the performance of work
  • a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee
  • a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work, or
  • the lockout of employees from their place of employment by the employer.

Industrial action does not include the following:

  • action by employees that is authorised or agreed to by the employer of the employees
  • action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer, or
  • action by an employee if:
    • the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety, and
    • the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

Unlawful protest

Deputy President Colman held that the anti-lockdown protest at this time was an unlawful protest given the public health orders and so Mr Chebbo’s attendance at the protest could not be regarded as a ‘lawful industrial activity’ within the meaning of s 347 of the Fair Work Act 2009 (Cth) (the Act) and not protected under s.346 of the Act. Thus, terminating an employee for attending an unlawful protest, given it does not fall within the definition of ‘lawful industrial activity’, will not constitute adverse action against an employee.

Deputy President Colman found that these factors gave the Company a valid reason to dismiss Mr Chebbo but found his conduct did not constitute serious misconduct. Overall, the dismissal was found to be harsh. While Mr Chebbo’s conduct was deliberate, in the sense that he chose to break the stay-at-home orders and by doing so put his employer’s reputation at risk, Deputy President Colman did consider that Mr Chebbo did not think through the consequences of his actions. It was not the case that he directly defied a clear company policy prohibiting certain conduct. Rather, it was found that Mr Chebbo had failed to have regard to his duty of fidelity to his employer and act in its best interests; he did not think about the reputational risk to his employer that could be caused by his attendance at the protest. He should have done so. His failure to do so was a valid reason for dismissal and dismissal was a proportionate response but Deputy President Colman found that Mr Chebbo should have been dismissed with notice and not summarily.

Dismissal of an Anti-Lockdown Protestor - stay at home orders dismissed

Summary: Dismissal of an Anti-Lockdown Protestor is Harsh

We are certainly in difficult changing times. Its emotional charged times, the conflict over protects, vaccinations, human rights, government mandates is ongoing. We are A Whole New Approach P/L, the nations leading workplace advisors, we are not lawyers, but representatives with 20 plus years experience. We are here for you. All Fair work Commission matters, including unfair dismissals, unlawful dismissals, anything to do with the workplace. Advice is free, prompt and honest, call anytime on 1300 766 700. We work in all states, including Victoria, NSW, QLD

[1] [2021] FWC 6693.