Last Friday the High Court unanimously found that the Bendigo
Regional Institute of Technical and Further Education (BRIT) did
not take adverse action against its employee Gregory Barclay, for a
reason prohibited by the Fair Work Act 2009 (Cth
This decision is significant for employers, as it provides some
clarity in relation to adverse action provisions in the Act.
The Act prohibits an employer from taking adverse action against
an employee because the employee, among other things,
'has a workplace right', 'is an officer or member of an
industrial association' or 'engages in industrial
In the case of Board of Bendigo Regional Institute of
Technical and Further Education v Barclay  HCA 32, BRIT
disciplined Mr Barclay, who was a union delegate, over an email he
sent to other union members at the workplace. The email contained
allegations that unnamed employees of BRIT had been involved in
producing fraudulent documents for an upcoming audit. Mr Barclay
did not report the allegations to management and refused to provide
any details to management when asked to do so. As a result, Mr
Barclay was suspended on full pay pending an investigation and was
ultimately asked to show cause why he should not be disciplined for
Mr Barclay and the union made an application to the Federal
Court alleging that BRIT had taken adverse action against Mr
Barclay because of his union membership and industrial activity.
The first judge who heard the matter accepted that BRIT had
disciplined Mr Barclay not because of his union status or union
activities, but because of the inappropriate way in which he had
raised the allegations of fraud (by email to other employees rather
than raising them with management).
The Full Federal Court decision
However, on appeal, the Full Federal Court ruled that when
determining the reason the decision maker took the adverse action,
a court must consider the real reason for the decision (in this
case the decision to discipline Mr Barclay) and that this required
a consideration of the objective and 'subconscious' reasons
for making the decision. It went on to say that the
'subconscious' reason might not be the reason that the
decision maker genuinely believes they are motivated by.
The Full Federal Court found that the fact that Mr Barclay was a
union member and was engaging in union activities would have
'subconsciously' been in the mind of the BRIT decision
maker when making the decision to discipline Mr Barclay. Therefore
the Full Federal Court found that BRIT engaged in adverse action
for a prohibited reason. BRIT appealed this decision.
The High Court ruled that there is no express provision in the
Act that requires the courts to consider any 'subconscious'
reason for taking adverse action. The direct evidence of a decision
maker as to their state of mind, intent or purpose when making the
decision will be relevant when determining why the adverse action
The High Court stated that it would be impossible for an
employer to defend an adverse action claim if it was required to
prove that the decision maker did not 'subconsciously' make
a decision for a prohibited reason. In overturning the Full Federal
Court's decision, the High Court found that BRIT had shown that
the reason for the adverse action was not a prohibited reason, and
that Mr Barclay's union status and activities were not
operative factors in the decision to discipline him.
Lessons for employers
This is an important decision for employers as it provides some
clarity in relation to adverse action provisions in the Act and has
removed the high burden that the Federal Court had imposed on
employers when seeking to prove that they did not act
Employers are still required to prove that the adverse action
did not occur for a prohibited reason, but now they can rely on the
actual reasons for the decision instead of being concerned about
any 'subconscious' reason that may be attributed to the
Winner - EOWA Employer of Choice for Women Citation 2009, 2010
Winner - Australasian Law Awards Gold Employer of Choice 2011
Finalist - ALB Australasian Law Awards 2008, 2010 and 2011 (Best
Winner - BRW Client Choice Awards 2009 and 2010 - Best Australian
Law Firm (revenue less than $50m)
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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