Australia: Post-Barclay adverse action snapshot: emerging trends in adverse action law

Last Updated: 25 June 2013
Article by Abraham Ash

Key Points:

Post-Barclay, adverse action cases still demonstrate the importance of a decision-maker's clear evidence explaining why that particular action was taken in relation to an employee.

Adverse action proceedings, or threats to bring such proceedings, appear to be increasing and are now often seen as a quasi unfair dismissal jurisdiction for senior employees who would not otherwise have access to that regime.

Last year's decision of the High Court of Australia in Board of Board of Bendigo Regional Institute of Technical and Further Education v Barclay1 drew significant interest from employment lawyers because it clarified the approach courts should adopt when determining whether adverse action had been taken for a prohibited reason.

Many months on, it is now worth stepping back to consider what trends are emerging in adverse action law in light of that High Court decision.

Adverse action — what are the risks?

Adverse action proceedings under the Fair Work Act 2009 (Cth) may be brought by employees who consider that adverse action has been taken against them in their employment for a discriminatory or prohibited reason.

The danger for an employer is that once an employee has established that adverse action has been taken against him or her, the onus then shifts to the employer. The employer must demonstrate that the prohibited reason was not the reason, or one of the reasons, that the adverse action was taken.

In the Bendigo v Barclay decision, the High Court confirmed that this reverse onus can often be satisfied by the employer in a straightforward way — by a court accepting evidence from the "decision-maker" that explains that the action was not taken for a prohibited reason.

Dismissal may be unfair, but it is not prohibited adverse action under the Fair Work Act

A snapshot of recent court decisions demonstrates that where the evidence of a decision-maker is accepted by a court, then the reverse onus will generally be discharged and the application will be dismissed.

In the February 2013 judgment of Wolfe v Australia and New Zealand Banking Group Ltd,2 the applicant alleged that adverse action, including dismissal, had been taken against him for discriminatory reasons — in particular, family responsibility reasons. In that case, the court was critical of the decision-maker's reasoning process, which it considered not to be transparent, not to be compliant with the collective agreement that was in place, and possibly to be unfair.

Nonetheless, the employer was not found to have taken adverse action for a prohibited reason. Rather, the decision-maker's denial that he took adverse action for a discriminatory reason, coupled with a reasoning process for dismissing the employee that, although not objective, was "not ... so completely irrational",3 were sufficient to discharge the burden of proof.

Similarly, in the March 2013 decision of Begley v Austin Health,4 an employee who was made redundant was considered to have been treated "extremely shabbily" and "very unfairly" in the termination of her employment after having worked for an employer for almost 20 years.5 However, despite the unfair treatment, the decision-maker gave evidence that the decision to terminate the employee's employment was not made for a prohibited reason, and the decision-maker was found to have had sound reasons for dismissing the employee. Accordingly, the reverse onus was satisfied and the application was dismissed.

Decision maker's evidence will not be automatically accepted

However, an employer who leads evidence from a decision-maker that adverse action was not taken for a prohibited reason will not always be successful in defending adverse action proceedings.

Rather, a court will be entitled to test and assess the reliability of any evidence given by a decision-maker.

In a case handed down by the Federal Magistrates Court in February, parts of the decision maker's written evidence were found to be inconsistent with other evidence — including the decision-maker's own oral evidence.[6] Accordingly, the decision-maker's evidence was considered to be "in large part unreliable", the reverse onus was not satisfied, and the applicant was awarded compensation of $32,872.87.

Importance of decision-maker's evidence being led

Finally, Burke v Serco Pty Ltd,7 a decision handed down in November 2012, demonstrates the importance of an employer leading some evidence from a decision-maker.

In that decision, the employer did not call upon the decision-maker to give evidence. The only witness called by the employer did not have any personal knowledge of the reasons for the employee's termination and his evidence was found to have little probative value. Therefore, the employer failed to discharge the reverse onus and the employer was ordered to pay to the applicant compensation of $18,879.51, as well as a pecuniary penalty of $16,500.8


Importance of employer leading clear evidence from decision-maker

Adverse action cases decided in the intervening period since the Bendigo v Barclay decision continue to demonstrate the importance of an employer leading clear evidence from a decision-maker explaining the reason that particular action was taken in relation to an employee. While that evidence will not automatically be accepted by a court, a failure to lead any evidence from a decision will make an employer's defence all but impossible.

Employees should think twice before bringing adverse action rather than unfair dismissal proceedings

These 2013 cases may also cause employees who have been dismissed to think twice before bringing adverse action proceedings, rather than unfair dismissal proceedings, against their former employer. While there are important advantages to bringing adverse action proceedings — including that the eligibility requirements are more relaxed and the potential compensation can be higher — in some circumstances, an employee who has arguably been unfairly dismissed will not also have been the victim of prohibited adverse action.


1Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647; 86 ALJR 1044; [2012] HCA 32.

2Wolfe v Australia and New Zealand Banking Group Ltd [2013] FMCA 65 (Whelan FM) (7 February 2013).

3Above, n 2, at [97]

4Begley v Austin Health [2013] FMCA 68.

5Above, n 4, at [393].

6Ross v RC Mackenzie and Sons Pty Ltd [2013] FMCA 31 (Hartnett FM) (1 February 2013).

7Burke v Serco Pty Ltd [2012] FMCA 1134.

8For the imposition of the penalty, see Burke v SERCO Pty Ltd [2013] FMCA 196.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.