Bendigo TAFE successful in its appeal against
controversial adverse action ruling
The decision of Bendigo Regional Institute of TAFE v
Barclay  HCA 32 has been delivered by the High Court.
The High Court unanimously allowed an appeal by the Bendigo
Institute of Technical and Further Education (TAFE) from a decision
of the Full Federal Court, which found that the TAFE had taken
adverse action against an employee.
The employee, Mr Barclay, was a union delegate who sent an email
to all members of the Australian Education Union employed at the
TAFE, advising employees of allegations that management was asking
employees to falsify documentation relating to an accreditation
audit process. The TAFE suspended Mr Barclay on the grounds that as
an employee he should have reported the alleged misconduct to
management before publishing the allegation in the workplace and
that his email damaged the reputation of the employer. Mr Barclay
claimed that the suspension constituted adverse action for the
prohibited reason that he was engaging in union related
The trial judge accepted evidence given by the decision-maker of
the TAFE that she had not taken adverse action against Mr Barclay
because of his industrial activities or association, but because of
the inappropriate way in which he raised the allegations of
The Full Court of the Federal Court upheld an appeal by Mr
Barclay, finding that the TAFE did take adverse action for a
prohibited reason and held that in adverse action cases, the
"real reason" for the behaviour at the centre of
proceedings "may be conscious or unconscious, and where
unconscious or not appreciated or understood, adverse action will
not be excused simply because its perpetrator held a benevolent
intent". This meant that a person could breach the adverse
action provisions even if they honestly believed they were not
acting for a prohibited reason.
Decision of the High Court
The High Court rejected the Full Court's reasoning and
upheld the trial judge's findings. The High Court held that the
evidence of the decision-maker, which was accepted by the trial
judge and not challenged by the Full Court, established that the
adverse action taken against Mr Barclay had not been for a
Importantly, the High Court held:
it is erroneous to treat the onus imposed on an employer by s
361 as being made heavier (or rendered impossible to discharge)
because an employee affected by adverse action happens to be an
officer of an industrial association. A person who happens to be
engaged in industrial activity should not have an advantage not
enjoyed by other workers
it is an error to treat the employee's union position and
activity as inextricably linked with the adverse action and a
factor which can never be disassociated from the adverse
What this means for employers
This decision can be viewed as a win for employers as it goes to
restoring the balance between employers and employees. It confirms
that an adverse action claim can be successfully defended if the
employer gives evidence, which is accepted by a court, that the
employer acted for an "innocent" reason and not a
The same reasoning will be applicable to workers who happen to
be occupational health and safety representatives and bring adverse
action claims, alleging that action was taken because they have
raised safety issues.
However, adverse action claims will remain an attractive cause
of action for many employees seeing it as an easy alternative to
unfair dismissal, due to the reverse onus and the extension of
It remains important for employers to be aware of the prohibited
reasons for taking adverse action and employers should:
ensure that the reasons for taking action against an employee,
which may have an adverse effect, are unrelated to any protected
attributes or activities
ensure the decision-making process is properly documented
before acting so in the event of proceedings, contemporaneous
evidence of the reasons for the decision exist.
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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