Where to after Barclay's case?
The High Court has now given judgment in the first adverse action case to travel all the way up the appeal hierarchy.... and has reinstated the decision of the trial judge.
Background to the case
In this particular case, Bendigo TAFE had suspended Mr Barclay (a union representative) because of some inflammatory comments he made about the TAFE allegedly fostering the preparation of false documents in the lead up to a quality audit. Mr Barclay filed a claim against the TAFE stating that it had taken adverse action against him because of his status as a union representative.
The trial judge in the Federal Court found that the TAFE had not taken action because of Mr Barclay's role as a union representative, and accepted Bendigo TAFE's argument that it had taken action because it perceived Mr Barclay had breached his obligations as an employee.
On first appeal, the Full Court of the Federal Court found in favour of Mr Barclay. It held that it could not rely only on what the managers at Bendigo TAFE said their intentions were, because when viewed "objectively", the action related to Mr Barclay's conduct (albeit excessive conduct) as a union representative and therefore it was impossible to divorce the action taken against him from his union role.
The High Court decision
The High Court overruled this reasoning and reaffirmed the importance of the evidence given by the employer about the reasons for taking the action in question.
The managers' evidence was that, in their minds, Mr Barclay was suspended because his comments alleging serious misconduct were inflammatory, and because he refused to give details to the college so that it could investigate the alleged misconduct - NOT because of his union role. The High Court held that these two things could be distinguished: credible evidence given by the managers about their subjective reasons could not be overridden by the mere fact of his union role, unless there was some evidence that the union role did in fact play some part in the decision.
What must employers do?
This case emphasises the fact that in adverse action claims, generally speaking, the critical issue is the decision-maker's evidence about his or her reasons for taking the action, and the credibility of that evidence.
Obviously this evidence is strengthened if there is a contemporary written record of the decision and the factors taken into account, and nothing in the circumstances which suggests an illegitimate reason for the decision.
Whenever you make a decision that adversely affects an employee, especially if there are risk factors present (such as possible grounds for alleging discrimination, or union involvement, or the employee having asserted a workplace right), you need to act with some caution and be aware of the matters that will need to be proved if the decision is challenged.
If the decision is challenged, as an employer you will need to prove that the suggested illegitimate reason for taking adverse action was not in fact the reason, or even one of the reasons, why the action was taken.
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.
