Casino Canberra has lost a bid to overturn orders to compensate an employee of nearly 20 years after it discriminated against him because he raised concerns about workers' rights amid a potential ownership change.
Bryan Bradford Kidman in 2019 told The Canberra Times in an interview about employees being left in the dark in relation to staffing levels, wages and conditions.
At the time, Blue Whale Entertainment was in the process of acquiring Aquis Entertainment, the casino's owner.
His interview came after the United Voice Union, of which Mr Kidman is a delegate, had discussions with the casino about the complex $32 million transaction, which ultimately fell through.
At the time of the interview, after the nominal expiry date of the relevant enterprise agreement had passed but which continued to operate until replaced or terminated, Mr Kidman spoke as a delegate for the union, now known as the United Workers Union.
He said the union sought written assurances for employees that the impending deal would not result in forced redundancies, changes to rosters or outsourcing of work.
However, such assurances were not provided. The casino expressed its preference "that any bargaining process not be initiated until after the sale is completed".
Two days after the article of his interview was published, the casino and its in-house legal counsel wrote to Mr Kidman, an employee since 2003, about their concerns and about the casino's required standards of behaviour.
The casino also indicated the potential for formal performance counselling.
A union organiser then lodged a complaint with the ACT Human Rights Commission before it was referred to the ACT Civil and Administrative Tribunal.
Mr Kidman argued that the casino writing to him about those terms constituted discrimination.
The tribunal in July 2020 found in his favour and ordered the casino to pay him $8620 of which $4000 was damages and the remainder legal costs.
The tribunal found the casino breached a section of the Discrimination Act by subjecting him to unfavourable treatment in his employment because of his industrial activity.
The casino complied with one of the orders issued and appealed three others.
Two members of the appeal tribunal said "it is clear from the detailed submissions that, in essence, it wanted the appeal to be allowed" and for the three orders it did not comply with - including the finding it was discriminatory and paying Mr Kidman damages - to be set aside.
As well as the compensation and costs orders, the casino raised issues related to whether the original tribunal erred in relation to Mr Kidman participating in industrial activity during the interview and in relation to the casino treating him unfavourably.
It said the completion of the sale would not have affected its contractual or statutory obligations toward the workers under the enterprise agreement.
In a recent decision, the appeal tribunal dismissed the casino's legal action.
The appeal tribunal members said they were satisfied there was sufficient information for the original tribunal to find Mr Kidman's actions meeting the definition of industrial activity defined in the Discrimination Act.
They said Mr Kidman was "participating in a lawful activity organising the union and was representing or advancing the views, claims or interests" of union members the casino employed.
The members said they also agreed with the original decision that he was treated unfavourably because of his industrial activity.
They said it was reasonable for Mr Kidman to feel the impact of the casino's letter "in the context of a power imbalance between themself as an employee and their employer when their actions as a union delegate were the subject of such correspondence expressed to relate to their conduct as an employee".
"That might produce apprehension about the security of that person's employment and any advancement as an employee," they said.
The members said that while the casino did not deny him opportunities for promotion or dismiss him, its response to his industrial activity subjected him to detriment.
"In treating Mr Kidman unfavourably because of his industrial activity, Casino Canberra unlawfully discriminated against him," they said.
"The amount awarded by the original tribunal was not one which is out of line with other awards for unfavourable treatment in the workplace."
Following the outcome, Mr Kidman said the result was positive.
The casino's CEO declined to comment on the appeal tribunal's decision.
