The High Court in Board of Bendigo Regional Institute of
Technical and Further Education v Barclay ( 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
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
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
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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