By Vanessa Andersen,Partner;Bronwyn Maynard, Senior
Associate and Lauren Brignull, Lawyer
The long awaited High Court decision in the area of adverse
action was handed down on 7 September 2012. Employers who are able
to show by good evidence that the substantial and operative reason
of the decision maker was not a prohibited reason, will be able to
discharge the onus to prove that the action was not adverse action
under the Fair Work Act 2009.
Mr Barclay was an employee of Bendigo Regional Institute of
Technical and Further Education (BRIT) and the
President of BRIT's branch of the Australian Education Union
(AEU). In January 2010, Mr Barclay sent an email
to members of the AEU employed by BRIT alleging serious misconduct
by BRIT employees relating to the production of false and
fraudulent documents in relation to an upcoming accreditation audit
based on concerns raised by other AEU members. When questioned on
these matters by his manager, Mr Barclay refused to provide details
of the allegations. BRIT CEO, Dr Louise Harvey, subsequently
requested Mr Barclay show cause why he should not be disciplined
for this conduct. Mr Barclay was suspended on full pay pending a
Mr Barclay and the AEU sought a declaration that BRIT had
contravened section 346 of the Fair Work Act (FW
Act) by taking adverse action against Mr Barclay because
(among other things) he was an officer of the AEU and had engaged
in industrial activity. Under section 361 of the FW Act, the onus
is on the employer to prove that the action was not taken for a
The claim was brought in the Federal Court where Dr Harvey's
evidence was that she had taken action not because of Mr
Barclay's union affiliations, but due to the way he had raised
the allegations. The trial judge accepted Dr Harvey's evidence
and dismissed the application. Mr Barclay and the AEU successfully
appealed to the Full Federal Court. By special leave, BRIT appealed
to the High Court.
The High Court delivered three separate judgments unanimously in
favour of the employer. On the basis that Dr Harvey's evidence
in the trial was not challenged by either of the parties, the Court
confirmed that the action had not been taken for a prohibited
reason. Consequently, employers who are able to show that the
substantial and operative reason of the decision maker was not a
prohibited reason, will be able to discharge the onus. This will
generally require evidence by the decision maker of the particular
reason for their decision, and the reasoning they actually
employed. Notably, the judgment of Gummow and Hayne JJ also
favourably refers to the similarities between s 346 of the FW Act
and discrimination legislation regarding the notion of a
comparator, that is, for example, whether a person who is not a
union delegate would be treated in a similar way. This may assist
employers in making decisions where there is a risk of an employee
making an adverse action claim.
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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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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