Publications / Employment

7 Sep 12
High Court finds for Bendigo TAFE in landmark adverse action case

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By Michael Moy, Partner

In a decision that will please employers around the country, the High Court today allowed an appeal by Bendigo Regional Institute of Technical and Further Education (BRIT) from a Full Federal Court decision relating to general protections (commonly referred to as adverse action) claims. McCullough Robertson Workplace Relations partner, Michael Moy, highlights the decision and its ramifications.

Case background – Full Federal Court decision

The Full Court of the Federal Court originally found BRIT had contravened the ‘industrial activities’ protection in the general protections provisions of the Fair Work Act 2009 (Cth) when it took action against its employee, Mr Barclay (including suspending him from employment and denying him internet access at the workplace) after he emailed union members in his capacity as a union delegate.

Mr Barclay was an officer of the Australian Education Union (AEU). He sent an email to all members of the AEU employed at BRIT which alleged serious misconduct by unnamed persons at BRIT, who, Barclay alleged, had been involved in the production of false or fraudulent documents in connection with an upcoming audit. BRIT argued the disciplinary action it took against Mr Barclay was because he had breached its code of conduct by sending the email, not due to his industrial activities.

Mr Barclay alleged BRIT’s conduct constituted adverse action because he:

  • was an officer of the AEU
  • engaged in an industrial activity by representing or advancing views, claims or interests of the AEU
  • engaged in industrial activity by encouraging or participating in lawful activity organised or promoted by the AEU
  • exercised a workplace right as a representative of the AEU in resolution of a dispute or grievance under the BRIT collective agreement, and
  • exercised a workplace right by participating in a dispute resolution process under the BRIT collective agreement.

The majority of the Full Court of the Federal Court stated that while the state of mind or subjective intention of the employer is centrally relevant, it does not determine whether the employer acted for a prohibitive reason. It found that what was determinative was the ‘real reason’ behind the employer’s conduct, not what the employer thinks was the reason. The ‘real reason’ (according to the majority of the Full Court) ‘may be conscious or unconscious, and where unconscious or not appreciated or understood, adverse action will not be excused simply because its perpetrator held a benevolent intent.’

In doing so, it found that, because the sending of the email by Mr Barclay amounted to engagement in industrial activity, and because BRIT’s reasons for taking adverse action against Mr Barclay were ‘founded upon’ the sending of the email, the reasons why BRIT had taken adverse action against Mr Barclay ‘included the fact that he was an officer of the AEU and the fact that he had engaged in industrial activity.’ 

Employers had rightly been concerned since that decision that it effectively meant that an employer could never take any disciplinary action against a union delegate or officer in relation to their conduct if it related to their duties as delegates or officers of the union.

Today’s High Court decision

The High Court unanimously dismissed the Full Federal Court’s approach, accepting the unchallenged evidence of Dr Harvey, BRIT’s Chief Executive Officer that she had not taken adverse action against Mr Barclay because of his industrial activities or affiliation, but because of the inappropriate way he had raised the allegations of serious misconduct. 

Importantly, the High Court decided if there is evidence from an employer that a decision has been made or taken for an innocent or ‘non-prohibited’ reason, and that evidence is accepted as reliable and not challenged, it must stand that that the employer has not acted for a proscribed reason in taking adverse action against an employee.

This means that where an employer’s evidence is accepted as reliable and not challenged, the Court does not need to look behind that evidence to find the ‘unconscious’ reason for the action.

While the High Court dismissed the use of a purely ‘objective test’ to determine the employer’s reasons for their actions, employers should not rely on a purely subjective test where the employer’s stated reason is determinative. The employer’s subjective intention will be determinative if it is accepted by the Court as reliable and either not challenged, or withstands challenge from contradictory evidence.

Justice Heydon found the distinction made by the Full Court of the Federal Court between conscious and unconscious reasons was ‘indefensible’. Employers will be delighted by the following comments from Justice Heydon:

 ‘Nothing in the Act expressly suggests that the courts are to search for “unconscious” elements in the impugned reasoning of persons in Dr Harvey’s position. No requirement for such search can be implied. This is so if only because it would create an impossible burden on employers accused of contravening s 346 of the Act to search the minds of the employees whose conduct is said to have caused the contravention. How could an employer ever prove that there was no unconscious reason of a prohibited kind?’

McCullough Robertson’s Workplace Relations and Safety team regularly advises clients in relation to general protections claims. Contact a member of the team if you require any advice or representation in relation to such claims.


Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.

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