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.
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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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