Victimisation for Union Activities

1. Meaning

Victimisation for union activities refers to adverse treatment of a workman or employee because of their legitimate participation in trade-union activities.

It may occur when an employer takes action against an employee because the employee:

• joins or forms a trade union;
• becomes a union office-bearer;
• participates in lawful union activities;
• raises collective employment grievances;
• represents other workers;
• participates in lawful union meetings or demonstrations; or
• supports collective bargaining.

Victimisation can take different forms, including:

• dismissal or termination;
• suspension;
• demotion;
• transfer;
• denial of promotion;
• reduction of benefits;
• discriminatory allocation of work;
• disciplinary proceedings initiated with an improper motive; or
• other adverse treatment connected with legitimate union activity.

The important legal question is often whether the employer's stated reason for the action is genuine or whether the action was actually motivated by the employee's union activity.

2. Legal Framework in India

Trade-union victimisation is addressed principally through the Industrial Disputes Act, 1947, particularly the provisions concerning unfair labour practices.

The Fifth Schedule to the Industrial Disputes Act identifies unfair labour practices.

Examples of employer conduct relating to union activity include:

• threatening workmen with discharge or dismissal if they join a trade union;
• threatening lock-out or closure if employees organise;
• creating or supporting employer-sponsored unions;
• discriminating against employees for joining or supporting a trade union;
• dismissing or punishing employees because they participate in legitimate trade-union activities; and
• discharging or dismissing office-bearers of recognised unions in circumstances prohibited by law.

The Industrial Relations Code, 2020 was enacted to consolidate industrial-relations legislation, including matters concerning trade unions and unfair labour practices. Its practical application depends on the commencement and implementation of the relevant provisions.

3. What Constitutes Victimisation?

Not every disciplinary action against a union member constitutes victimisation.

For victimisation to be established, the surrounding circumstances are important.

Courts may examine:

1. Union activity of the employee
2. Timing of the employer's action
3. Nature of the alleged misconduct
4. Whether similarly situated employees were treated differently
5. Whether the punishment is disproportionate
6. Whether the disciplinary proceedings were bona fide
7. Whether there was a history of conflict between the employee and management
8. Whether the employer's explanation is supported by evidence

Therefore, an employer can take legitimate disciplinary action against a union activist for genuine misconduct. Union membership does not provide immunity from ordinary workplace discipline.

4. Victimisation and Mala Fide Action

Victimisation frequently involves an allegation that an apparently legitimate action was actually motivated by an improper purpose.

For example:

A union office-bearer is dismissed for alleged misconduct immediately after leading a lawful wage-related protest.

The employer may state that the dismissal resulted from misconduct.

The court or industrial tribunal may examine whether:

• the misconduct actually occurred;
• the disciplinary process was genuine;
• other employees committing comparable misconduct were treated similarly; and
• the real reason was the employee's union activity.

The motive and surrounding circumstances can therefore become important.

5. Important Case Laws

1. Indian Express Newspapers (Bombay) Pvt. Ltd. v. T.M. Nagarajan, (1988) 1 SCC 641

The Supreme Court considered allegations relating to victimisation and unfair labour practices in the employment context.

The Court recognized that victimisation involves an element of improper motive and that the surrounding circumstances may be examined to determine whether disciplinary action was genuinely based on misconduct.

Principle: An employer cannot disguise an improper anti-union motive as ordinary disciplinary action.

2. Bharat Iron Works v. Bhagubhai Balubhai Patel, (1976) 1 SCC 518

This is one of the leading Supreme Court decisions concerning victimisation and unfair labour practice.

The Court explained that victimisation involves an element of bad faith or unfair treatment and cannot be established merely because an employee happens to be a union member.

The court/tribunal must examine the circumstances surrounding the employer's action.

Principle: Mere membership of a trade union does not establish victimisation; the circumstances must demonstrate that the employer's action was improperly motivated or otherwise amounted to unfair treatment.

3. Hind Construction Co. Ltd. v. Their Workmen, AIR 1965 SC 917

The Supreme Court examined disciplinary punishment and the question of whether the punishment imposed by the employer was justified.

The judgment is important in victimisation cases because industrial adjudication can examine whether the employer's disciplinary action is bona fide and whether the punishment is appropriate in the circumstances.

Principle: The employer's disciplinary power is subject to scrutiny where the action is alleged to be unfair, unreasonable or motivated by an improper purpose.

4. Workmen of Williamson Magor & Co. Ltd. v. Williamson Magor & Co. Ltd., (1982) 1 SCC 117

The Supreme Court considered the principles governing victimisation and unfair labour practices in an industrial dispute.

The Court emphasized that the circumstances surrounding disciplinary action may be relevant when determining whether an employer's action was genuine or constituted victimisation.

Principle: The tribunal may examine the substance and surrounding circumstances of an employer's action rather than accepting its stated justification automatically.

5. Mackinnon Mackenzie & Co. Ltd. v. Audrey D'Costa, (1987) 2 SCC 469

The Supreme Court dealt with discriminatory treatment in employment and emphasized that apparently neutral employment decisions may be examined where discriminatory treatment is alleged.

Although the case concerned gender discrimination rather than exclusively union victimisation, it is useful for understanding the broader principle that employment decisions may be tested against the actual circumstances and treatment of similarly situated employees.

Principle: Comparative treatment and the actual circumstances surrounding an adverse employment action can be relevant in determining whether the action is discriminatory or unfair.

6. Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, (1980) 2 SCC 593

This is a significant Supreme Court judgment concerning industrial disputes, dismissal and allegations of victimisation.

The Court examined the circumstances surrounding disciplinary action and emphasized that industrial adjudication can look beyond the formal language of an employer's order to determine the real character of the action.

Principle: The industrial tribunal may examine whether an apparently disciplinary action was actually connected with an improper purpose such as victimisation.

7. Muir Mills Co. Ltd. v. Suti Mills Mazdoor Union, AIR 1955 SC 170

The Supreme Court considered the relationship between industrial disputes and trade-union rights.

The judgment forms part of the early development of Indian industrial jurisprudence concerning collective labour rights and the role of trade unions.

Principle: Trade-union activity is an important component of industrial relations and cannot be undermined through unlawful employer conduct.

6. Burden of Establishing Victimisation

An allegation of victimisation must ordinarily be supported by facts and circumstances.

Relevant evidence may include:

• union membership records;
• union election records;
• notices issued by the union;
• disciplinary charge-sheets;
• termination letters;
• emails or correspondence;
• timing of disciplinary action;
• treatment of other employees;
• previous disciplinary records;
• witness testimony; and
• evidence concerning management's attitude toward union activity.

The employee or union cannot generally rely solely on the fact that the employee was a union member.

There must be circumstances supporting the allegation of victimisation.

7. Timing as Evidence

Timing can be an important circumstance.

For example:

Employee becomes union office-bearer → raises collective wage complaint → disciplinary proceedings begin shortly afterward.

This sequence does not automatically prove victimisation.

However, the tribunal may examine the sequence together with:

• the nature of the charges;
• previous treatment;
• evidence of misconduct;
• treatment of other employees; and
• procedural fairness.

Thus, timing is evidence, but not necessarily conclusive evidence.

8. Genuine Misconduct vs Victimisation

This distinction is extremely important.

Genuine disciplinary action

An employee commits serious misconduct, evidence exists, a fair inquiry is conducted, and comparable employees are treated consistently.

This may constitute legitimate disciplinary action even if the employee is a union activist.

Possible victimisation

The employer selectively targets a union activist, relies on weak or fabricated allegations, departs from ordinary disciplinary procedures, and imposes unusually severe punishment in circumstances suggesting an anti-union motive.

The tribunal can examine the complete circumstances.

9. Victimisation and Unfair Labour Practice

Victimisation may constitute an unfair labour practice where it falls within the statutory prohibitions.

Examples include:

• discouraging employees from joining unions;
• discriminating against union members;
• threatening employees because of union participation;
• punishing lawful union activity;
• dismissing union office-bearers for prohibited reasons; or
• interfering with the independence of a trade union.

The purpose of these provisions is to protect genuine collective bargaining and freedom of association in industrial relations.

10. Remedies

Where victimisation is established, an industrial tribunal or court may, depending upon the applicable law and facts, grant appropriate relief.

Possible remedies include:

• reinstatement;
• back wages;
• continuity of service;
• restoration of benefits;
• setting aside dismissal;
• modification of punishment;
• compensation; or
• other appropriate relief.

The precise remedy depends on the statutory framework, facts, nature of the misconduct, and applicable judicial principles.

11. Employer's Defence

An employer may defend an allegation of victimisation by demonstrating that:

1. the employee actually committed misconduct;
2. the disciplinary proceedings were bona fide;
3. the employee received appropriate procedural safeguards;
4. the action was consistent with established workplace rules;
5. similarly situated employees were treated similarly; and
6. the action was unrelated to trade-union activity.

Therefore, union membership does not prevent an employer from enforcing legitimate workplace rules.

12. Practical Example

Suppose an employee is the secretary of a recognised trade union.

The employee participates in lawful collective bargaining regarding wages.

Two weeks later, the employer dismisses the employee for allegedly being late three times.

The tribunal may examine:

• whether the employee actually committed the alleged violations;
• whether other employees received similar punishment;
• whether the employer normally dismissed employees for comparable lateness;
• whether the disciplinary procedure was properly followed;
• whether the punishment was unusually severe; and
• whether the timing and other circumstances indicate an anti-union motive.

The tribunal would not determine victimisation merely from the employee's union position.

13. Key Principles

1. Legitimate union activity is protected by industrial-relations law.
2. An employer cannot lawfully punish an employee merely for participating in legitimate union activity.
3. Union membership alone does not establish victimisation.
4. Courts and industrial tribunals can examine the real circumstances surrounding an adverse employment action.
5. Timing, selective treatment, procedural irregularities and disproportionate punishment may be relevant evidence.
6. Genuine misconduct can justify disciplinary action even against a union office-bearer.
7. Victimisation may amount to an unfair labour practice where it falls within the statutory prohibition.
8. The ultimate determination depends upon the evidence and circumstances of each case.
9. Remedies can include reinstatement, back wages, continuity of service or other appropriate relief.
10. The central question is whether the adverse action was legitimate disciplinary action or was improperly connected with protected union activity.

Conclusion

Victimisation for union activities occurs when an employee suffers adverse employment treatment because of legitimate trade-union participation. Indian industrial jurisprudence, particularly decisions such as Bharat Iron Works, Gujarat Steel Tubes, Hind Construction Co., Williamson Magor and Muir Mills, recognizes the importance of examining the real circumstances behind disciplinary or employment decisions. At the same time, union membership does not exempt an employee from legitimate workplace discipline. The decisive issue is whether the employer's action is genuinely based on a lawful and supported reason or is connected to prohibited anti-union discrimination or victimisation.