Under the Fair Work Act (Act), it is unlawful
for an employer to take adverse action against an employee (such as
termination of employment or altering the position of the employee
to the employee's detriment) if it does so for a prohibited
reason specified in the Act. These prohibited reasons include the
employee either being a union officer or engaging in industrial
In February this year, the Full Federal Court had found that the
Institute had engaged in unlawful adverse action against Mr
Barclay, a delegate of the Australian Education Union. This related
to an email Mr Barclay sent union members in which he alleged
unnamed Institute staff had placed pressure on other staff to
falsify documentation for upcoming reaccreditation. The Institute
then suspended Mr Barclay on full pay and asked him to show cause
why he should not be disciplined for failing to report this alleged
In reaching its conclusion, the Full Federal Court had
determined that it was necessary to look beyond the employer's
stated intent for the adverse action to the "real
reasons" for doing so, even if the employer were unconscious
or unaware of these real reasons.
The High Court's ruling
While it was accepted that Mr Barclay's suspension and
requirement to show cause both amounted to adverse action, the High
Court unanimously overturned the Full Federal Court's finding
that it had been unlawful. In particular, the High Court rejected
the approach of weighing the employer's unconscious state of
mind over direct evidence of the employer's state of mind,
intent and purpose for taking the action.
Onus of proof still on employer
While this judgment is useful to employers defending adverse
action claims, it is important to bear in mind that an employer has
the onus of proving that adverse action did not occur for a
prohibited reason, rather than the employee proving it did. Simply
claiming that it was not for a prohibited reason is unlikely to be
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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