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We won't keep you, you're part of the Union
Why not to discriminate in employment... and why not to do it using email.
Every now and then a decision comes along that reminds us both about an important rule of law and about the potential exposure that can be caused by technology.
The recent decision of the Federal Court of Australia in The Community and Public Sector Union v Telstra Corporation Limited [2001] FCA 1364 illustrates both of these points.
Like many large corporations world-wide (especially at the moment) Telstra was forced to consider the possibility of making some of its 53,000 employees redundant. Prior to making particular decisions about the employees affected the Managing Director of Telstra's Employee Relations Group sent an email to Managers and Team Leaders. The Full Federal Court found that this email would have been understood as an instruction that when deciding who to make redundant the Mangers should discriminate against those employees whose employment was governed by union awards and certified agreements. The Court found that the email discriminated against each employee of Telstra who was employed under an award or a certified agreement - because it suggested that benefits would be construed upon those employees who were not union members.
The first valuable lesson to be learned from this case is the danger of discriminating against somebody in their employment because of a particular affiliation (or because of a reluctance to support beliefs and ideals held by an employer). In this country, the Employment Relations Act specifically provides that an employer may not discriminate against a person on the basis of union membership (in the same way that an employer may not discriminate against an employee on the basis of gender or ethical or religious beliefs). Depending on the nature of the discrimination the employee may have a claim either under the employment legislation or under the human rights legislation.
The second, and perhaps more remarkable feature of this case, however, was the way in which the Court assessed the appropriate penalty to be ordered against Telstra in respect of this act of discrimination. The maximum penalty available for a contravention of the relevant legislation was $10,000. The Court held, however, that the nature of the email was such that each of the 43,828 employees of Telstra who were union members had been discriminated against. Justice Finkelstein held that it was appropriate to impose a penalty in respect of each of those employees, and ordered a penalty of $1.70 be imposed in respect of each of them (amounting to a total penalty of approximately $74,500).
The Employment Relations Act contains similar provisions concerning penalty - allowing maximum fines to be imposed in respect of different contraventions of the Act. The approach adopted by the Australian Court is not one which has been considered to date by any Court in New Zealand. It is, however, arguable that a case could be made out that where a single act (especially one involving a sending of an email) affects many individuals, an appropriate penalty should be assessed according to the number of individuals affected (meaning that one act can constitute multiple contraventions of the legislation).
Perhaps the final lesson that might be learned from this case is the immense power that technology now affords both employers and employees. The case involved the sending of a single email which ultimately affected over 43,000 people. Employers may pause to consider the incredible effect that the written word can have - especially when it is capable of being recalled by many thousands of recipients. Indeed, this case (in which a decision was only handed down four days prior to the writing of this article) was able to be brought to our attention only by the supposed magic (and speed) of the internet. How fast our words travel, and how far our sentiments can reach ?
