Australia: Barclay decision: A sign of relief for employers

Last Updated: 22 September 2012
Article by Adam Lunn
  • The High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay ([2012] HCA 32) has unanimously overturned the full Federal Court's controversial decision that considered unconscious reasons in deciding whether adverse action was taken for a prohibited reason.
  • This decision significantly reduces the burden imposed on employers in defending general protections claims, especially in relation to claims involving union delegates and industrial activity.
  • The decision reaffirms that the decision maker's conscious evidence itself is capable of proving that the employer did not take adverse action for a prohibited reason.


Mr Barclay claimed that his employer, the Board of Bendigo Regional Institute of Technical and Further Education (the TAFE) breached the general protection provisions of the Fair Work Act 2009 (Cth) (the Fair Work Act). Mr Barclay claimed that the TAFE took disciplinary action against him because he was an officer of the Australian Education Union (the Union).

Mr Barclay sent an email to all TAFE employees who were Union members stating that some members had been asked to provide false information for the TAFE's reaccreditation audit.

Dr Harvey, the TAFE's Chief Executive Officer (the CEO), suspended Mr Barclay on the basis that he should have first raised these allegations with the TAFE to allow it to carry out an investigation.

At first instance, the Federal Court accepted the CEO's evidence that the reasons for suspending Mr Barclay did not involve his role as an officer.

On appeal, the full Federal Court controversially overturned this decision. In reasoning that is difficult to follow, the full Federal Court focused heavily on the CEO's unconscious state of mind. The full Federal Court found that the CEO must have been influenced by the fact that Mr Barclay was an officer of the Union, despite her evidence to the contrary, as Mr Barclay sent the email in his capacity as an officer to members of the Union.

The TAFE appealed.


Sensibly, the High Court held that the TAFE did not dismiss Mr Barclay because of his position as an officer or because he was engaged in industrial activity.

The High Court comprehensively rejected the full Federal Court's broad approach that focused on the CEO's supposed unconscious reasons for her decision. Instead, the High Court held that the focus should be on the decision maker's reasons for their decision at the time of taking the adverse action and should involve a review of the evidence as a whole.

In this regard, Gummow and Hayne JJ held that the proper approach is to balance the reliability and weight of the decision maker's evidence against the employee's evidence and the overall facts and circumstances of the case.

French CJ and Crennan J emphasised that direct testimony from the decision maker that is accepted as reliable is capable of establishing the reason for taking adverse action, even where the employee is an officer or member of a union and is involved in industrial activity.

Heydon J was most critical of the full Federal Court's decision. He queried how an employer could ever prove that there was no unconscious reason of a prohibited kind and followed that, 'an employer's inquiries of the relevant employees would provoke, at best, nothing but hilarity'.

Lessons for employers

This decision is significant as it reaffirms the primacy of the decision maker's stated reasons in defending a general protections claim. Following the High Court's decision, the decision maker's evidence itself is capable of establishing that adverse action was not taken for a prohibited reason, provided their evidence is not contradicted by other available evidence (for example, documentary evidence).

It is now clear that union delegates who engage in misconduct can be disciplined in the same manner as any other employee and have no special immunity. In our view, the previous burden imposed on employers to show that adverse action taken against a union delegate was not for a prohibited reason was excessively high and extremely difficult to discharge.

More generally, employers must remember that adverse action in itself is not unlawful; an employer can adversely affect an employee provided that the reason for taking such action is not a prohibited or discriminatory reason. Accordingly, it is critical to document all meetings with employees in order to establish the reasons for the adverse action, and to defend any subsequent claim.

For advice and assistance on potential claims under the Fair Work Act, please contact the Mills Oakley Workplace Relations, Employment and Safety team on (03) 9670 9111.

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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