Briefing Note - Reiche v Neometals Ltd [2026] FCAFC

This briefing note sets out an overview of the Full Federal Court's decision in Reiche v Neometals Ltd [2026] FCAFC 53. The decision is significant as the first appellate authority to consider the corporate whistleblower protection regime under Part 9.4AAA of the Corporations Act 2001 (Cth), clarifying when an employer's detrimental conduct (such as termination or redundancy) towards an employee will contravene the anti-victimisation provisions, and the requisite state of mind and causal connection required for liability to arise. 

This note summarises the key findings and practical implications for employers, companies, directors and in-house counsel.

Executive Summary

The Full Federal Court of Australia has handed down its first appellate decision on the corporate whistleblower protection regime under Part 9.4AAA of the Corporations Act 2001 (Cth) (Corporations Act).

The decision provides authoritative guidance on two questions of central importance to companies, directors and in-house counsel: 

1. what state of mind must a decision-maker have for their conduct to be captured by the regime; and 
2. how closely must that state of mind be connected to the decision to take detrimental action against an employee for the decision or action to fall foul of the anti-victimisation provisions.

On the first question, the Full Federal Court confirmed that a decision-maker does not need to know or understand that a disclosure attracts legal protection under the whistleblower regime. There is no requirement that the decision-maker be familiar with the legislation or appreciate the legal consequences of what has been disclosed.

Instead, a company may be exposed to liability where a decision-maker holds a subjective belief or suspicion that:

1. an alleged whistleblower has raised, is raising, or may raise, concerns; and
2. those concerns relate to misconduct or an improper state of affairs within the company (or a related entity).

On the second question, the Full Federal Court confirmed that not every connection between a disclosure and a subsequent decision which has detrimental consequences for the alleged whistleblower will give rise to liability. The decision-maker's awareness of the disclosure must have been a substantial and operative factor; that is, something that actually moved them to act. If the disclosure was merely part of the background or was considered but did not materially influence the outcome, that will not be enough to establish a claim.

In practical terms, the significance of this decision for companies is twofold. 

• Low threshold: The threshold for what triggers the regime is low, a decision-maker need only suspect or believe that there is an actual or potential disclosure about misconduct or an improper state of affairs.
• Not a motivating factor: However, if a company can demonstrate through clear evidence and contemporaneous records that the disclosure played no real or operative part in its decision-making, it can successfully defend a claim.

While these principles are helpful in clarifying that many ordinary business communications and interactions may not rise to the threshold of a whistleblower disclosure, care should be taken and legal advice sought where it is unclear whether a particular disclosure attracts protection under the regime.

Employers must continue to be vigilant in this space and ensure that:

• Training and awareness: Those who are, or may be, eligible recipients and decision-makers are appropriately trained and aware of their obligations in relation to confidentiality and non-victimisation.
• Record keeping: Clear and contemporaneous records should be maintained articulating the reasons for any decision to engage in conduct that may be characterised as detrimental to the whistleblower.
• Identification of decision-makers: It is also important to identify with precision who is the relevant decision-maker on behalf of the company. Ideally, processes of delegation should limit the number of individuals involved in the decision which is asserted as having a detrimental impact on the whistleblower.

What happened?

Neometals Limited (Neometals) operates a business focused on sustainable processing solutions, predominantly in the mining industry. The appellant, Mr Reiche, was engaged as Neometals' "Head of Recycling" in October 2023. Following a significant management reorganisation at Neometals, which, among other changes, resulted in the removal of the “Head of Recycling” role, his position was made redundant. He was subsequently dismissed, in accordance with the terms of his employment contract, with effect from 4 September 2024.

As a part of his role, Mr Reiche also represented Neometals’ interests on the management board of Primobius, a subsidiary that was jointly owned with a German company. Primobius was the vehicle by which Neometals carried out its joint venture to design and construct a lithium-ion battery recycling plant.

Over the course of his employment, Mr Reiche raised a number of concerns which he alleged were whistleblower disclosures. 

In summary, the alleged disclosures raised several issues relating to intellectual property breaches by Primobius (first disclosure), commercial issues of a governance nature concerning the operations of Primobius (second and third disclosures), assertions as to unauthorised signing of a document by a Primobius official (fourth and fifth disclosure) and a formal whistleblower disclosure by way of a 9 July 2024 letter, which consolidated the previous disclosures and expressly identified itself as a disclosure to which Part 9.4AAA of the Corporations Act applied (sixth disclosure). 

As part of a broader restructure of Neometals’ business, the Board resolved on 21 August 2024 to approve a restructure plan under which Mr Reiche’s role, among others, was identified for redundancy. Mr Reiche was notified of this decision the following day. Neometals sought to consult with Mr Reiche in relation to the proposed redundancy; however, Mr Reiche declined to participate in that process. His employment was ultimately terminated on 4 September 2024.

By an originating application dated 13 September 2024, Mr Reiche sought various forms of relief under Part 9.4AAA of the Corporations Act, including injunctive and declaratory relief, and statutory compensation and damages. Following an expedited trial, that application was dismissed by the primary judge on 28 February 2025. Of note the primary judge found as a matter of fact: 

• by the time of Mr Reiche’s formal whistleblower disclosure 9 July 2024 letter, there were no objectively reasonable grounds for the allegations he had made, including those concerning intellectual property breaches, governance-related commercial decisions and unauthorised signing of a document; and
• where Mr Reiche’s evidence conflicted with the evidence of the Neometals’ directors and executives who gave evidence, the Court generally preferred the evidence of those directors. 

Mr Reiche appealed from the whole of the primary judgment.

What was decided on appeal?

The Full Federal Court (of Snaden, Raper and Neskovcin JJ) unanimously dismissed Mr Reiche’s appeal.

Mr Reiche advanced 15 grounds of appeal, which their Honours distilled into two broad categories of complaint: 

• first, that the primary judge misconstrued the task required by the statute on its proper construction; and 
• secondly, that his Honour erred in making, or failing to make, particular findings of fact.

An issue of central importance to the appeal, was the correct interpretation of section 1317AD(1)(b) of the Corporations Act, and what it is that the decision-maker must believe or suspect when engaging in detrimental conduct.

On appeal, Mr Reiche identified three potential constructions of the provision:

1. Actual knowledge of legal regime: the decision-maker must believe or suspect that a disclosure has been made and appreciate that it attracts legal protection under Part 9.4AAA (this is the construction that Mr Reiche submitted the primary judge had favoured);
2. Subjective and objective test: the decision-maker need only believe or suspect that a disclosure has been made, with the question of whether that disclosure qualifies for protection under the Corporations Act to be determined objectively; and
3. Subjective test: the decision-maker must subjectively believe or suspect that both a disclosure has been made and that the subject matter of the disclosure concerns misconduct or an improper state of affairs, asserted with reasonable grounds.

The Full Federal Court found the third construction was the preferred construction, and in doing so, upheld the primary judge’s analysis. Importantly under this construction, it is unnecessary that a decision-maker appreciate that there would be any legal consequences from the disclosure.

A decision-maker who wishes to demonstrate they acted lawfully must establish one of three things: 

1. they did not believe or suspect that a disclosure had been, was being or might be made;
2. they believed a disclosure had been, was being or might be made, but did not believe or suspect it was about misconduct or an improper state of affairs; or 
3. they believed or suspected a disclosure had been made, was being or might be made, which was about misconduct or an improper state of affairs, but did not believe or suspect the person who made it had reasonable grounds to do so.

The Full Federal Court also provided important clarity on when a belief or suspicion will be "a reason, or part of the reason” for the detrimental conduct – that is, the causative element of section 1317AD(1)(c). In doing so, the Full Federal Court confirmed that although the Corporations Act and general protections regime under the Fair Work Act 2009 (Cth) employ different statutory language, the two regimes are relevantly indistinguishable.

Drawing on case law from the general protections context,¹ the Full Federal Court upheld the primary judge's reasoning that a belief or suspicion will only satisfy this element if it was a substantial and operative factor in the decision to engage in the detrimental conduct. 

Therefore, a belief or suspicion that was merely considered or taken into account, but which did not materially move the decision-maker, will not meet this threshold.

What are the key implications for employers, companies, directors and in-house counsel?

Part 9.4AAA of the Corporations Act imposes significant obligations on regulated entities in circumstances where eligible whistleblowers have made, are making or may make disclosures that qualify for protection under the regime. Reiche v Neometals Ltd [2026] FCAFC 53 provides important clarification on the interpretation of those provisions and offers practical guidance for companies to comply with their obligations and in seeking to manage their exposure.

In light of this decision, practitioners should keep the following in mind:

• Nature of evidence required to defend a claim: A company will have a reverse onus of proof to show that a relevant belief or suspicion was not a substantial or operative reason for the detrimental conduct. This requires positive evidence to be led by the decision-makers as to their state of mind, including whether they subjectively believed or suspected that a disclosure had been, was being or might be made about misconduct or an improper state of affairs, and whether they believed or suspected the alleged whistleblower had reasonable grounds for the disclosure, and what their genuine reasons for their decisions were.
• Record keeping and identifying the decision-maker: Given the importance of the above evidence, this Full Federal Court decision underscores the importance of clearly documenting the timing, rationale and decision‑makers involved in redundancies, terminations, and other forms of detrimental conduct.
• Eligible disclosures: Not every alleged disclosure will be an eligible disclosure. Many ordinary business emails and interactions which an individual may later seek to characterise as a disclosure may not meet the threshold required for a whistleblower disclosure. However, employers should take care, as if a decision-maker suspects or believes a disclosure may be a protected disclosure, the victimisation provisions will apply, even if the disclosure is not actually legally protected under the regime. Although we have seen a trend of some individuals seeking to characterise past interactions as whistleblower disclosures, the key question is whether the decision-maker subjectively believed or suspected that a disclosure had been made, was being made or might be made, that was about misconduct or an improper state of affairs, and was asserted on reasonable grounds, and whether that formed part of the reasons for their decision.
• Cost exposure even where claims fail: Even where a whistleblower’s allegations are ultimately not substantiated, companies may still incur substantial legal and court costs in investigating, responding to and defending those claims, including urgent applications and expedited trials, with limited scope to recover those costs given the protective legislative regime.

Footnote

1. For example, General Motors Holden Pty Ltd v Bowling (1975) 12 ALR 605; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; and Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150.

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.