Australia: Landmark adverse action case: Barclay v Bendigo

We are speaking with Joe Catanzariti who heads up the National Workplace Relations Employment and Safety practice group at Clayton Utz in Sydney - welcome to Boardroom Radio Joe. 

Joe, employees engaged in Union activities can take comfort in that should they be dismissed or suffer any detriment from their employer because of their industrial activities the Courts will come to their rescue as was the case in a recent decision involving a Victorian Teacher - what happened here Joe?

Well let me talk specifically about how this case worked because it really does apply generally and we will see how it all works by just going through the facts of this case.

Now in this case he used his work email account but in so doing he also said that he was President of his union sub-branch so it was very clear to those picking it up that he was writing as the President of the union sub-branch.

He emailed the other union members saying a number of union members had complained to him about serious misconduct by a named person at this workplace. He didn't report those allegations to his managers before he sent the email, and importantly he didn't give the names of the complaining members when requested.

He was then asked by his employer why shouldn't you be disciplined in relation to not telling us, the employer, about this alleged misconduct you put on the email.

He then got suspended on full pay, they blocked his internet access, they asked him to show cause in effect as to why there shouldn't be any more disciplinary action. He then retaliated by saying well in my view this is adverse action. This adverse action triggers a reverse onus of proof, so the employer then has to prove that they didn't attack him consequently because of what he'd actually done, that being a prohibited reason.

Now the first instance, the trial judge took the view that the employee, being the union official, had in fact engaged in industrial activity but in effect the employer succeeded on the case. Then we get to the Full Federal Court who overturned this judgment and they have give us some guidance as to what adverse action is and how it'll work.

Well the Court ended up supporting the teacher by working through how the section actually looks. The first part of it, section 346 is a relevant piece of legislation under the Fair Work Act and it says you can't take adverse action against another person relevantly because they are an officer or a member of an industrial association, or engaging in conduct which is in fact industrial activity, and that was the activity being discussed here.

Now the majority judges said that because these laws these are meant to be protective you've got to interpret them not narrowly but widely, and if I can just quote one sentence from the judgment:

So they took a very broad view. 

They then said, well, the decision-maker really should have taken into account that he's stating that he is in fact acting as a union official. What they are putting in contrast here is the difference between you as an employee, and you as a union official. The breaking of the confidence here was seen to be as a union official and not as an employee. That's where it gets, of course, quite grey but that's the way given the strict reverse onus that the Court took that view.

Well there have been a number of opportunities to have adverse action cases - none of which have been successful.

This is landmark because it is the first successful adverse action case.  The majority judges assessed really what is adverse action. So it's created the new watershed in terms of looking at these cases going forward. 

I think the clear message from the Full Federal Court's decision to employers is that their subjective good intentions are not enough. And this particularly so when you are looking at industrial activity or in the exercise of workplace rights which blurs into the employment activities. You've got to be very cautious if you are contemplating action against an employee in response to something the employee has done, or has done arguably (as was the case here) in the capacity of the union member or union official.

From this decision we've learnt that it's always necessary to analyse carefully what the employee is doing and whether or not part of what they are doing is in fact protected or not protected.

It's important to note that adverse action is being talked around town as being the new discrimination ground as it expressly extends bringing adverse action on the grounds of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family care responsibility, pregnancy, religion, legal opinion, national extraction or social origin and also of course, industrial activity which came through this.

The clear message is review your decision-making processes to make sure there are clear guidelines in the situations like this and give reasons to the employees for the decisions based on the work process and conditions and finally, of course, document everything.