By The Editor
The High Court released a landmark decision on Friday following more than two years of litigation, which clarifies the reach of a new section of legislation introduced by the Fair Work Act 2009 (Cth), and upheld an employer’s original decision to suspend a union representative for alleged serious misconduct.
The background to the case was not in dispute during proceedings. Mr Greg Barclay was employed by the Bendigo Regional Institute of TAFE (BRIT) as a ‘Team Leader – Teaching Excellence’. BRIT was in the process of preparing for a quality audit for the purposes of reaccreditation.
On 29 January 2010, after being confidentially spoken to by a number of AEU members, Mr Barclay sent an email to all AEU members employed by BRIT in his capacity as President of the BRIT Sub-Branch of the Australian Education Union (AEU):
“Subject: AEU – A note of caution
It has been reported by several members that they have witnessed or been asked to be part of producing false and fraudulent documents for the audit.
It is stating the obvious but, DO NOT AGREE TO BE PART OF ANY ATTEMPT TO CREATE FALSE/ FRADULENT [sic] DOCUMENTATION OR PARTICIPATE IN THESE TYPES OF ACTIVITIES. If you have felt pressured to participate in this kind of activity please (as have several members to date) contact the AEU and seek their support and advice.”
The CEO of BRIT became aware of this correspondence and after consideration removed Mr Barclay from duty on full pay, pending an opportunity to respond to the charges of serious misconduct, which centred around:
- the manner in which he raised the allegation, via a broadly distributed email;
- not reporting the instances of alleged improper conduct directly to a superior; and
- refusal or failure to provide particulars of the allegations when asked to do so by his manager.
Mr Barclay and the AEU applied to the Federal Court for a declaration that BRIT had contravened section 346 of the Fair Work Act, which prevents adverse action against an employee because of their industrial activity. At first instance, the Federal Court dismissed the application, but Mr Barclay was successful on appeal to the Full Federal Court.
Central to this case was whether an officer of an ‘industrial association engaged in lawful industrial activity’ meant that union position and other activities were inextricably entwined, and that “Mr Barclay was therefore immune, and protected, from the adverse action”.
The effect of the Full Federal Court decision was that employees acting in their union capacity, even if it was in direct breach of an employer’s policy, would be protected from the employer taking any action against them.
In a win for employers, BRIT successfully appealed to the High Court, which rejected this proposition, stating,“If accepted, such a position would destroy the balance between employers and employees….”.
The High Court decision clarifies for employers that provided action taken against an employee is not taken because of a protected attribute, the action (for example, to discipline, retrench or dismiss) will be lawful.
A second concerning element of the Full Federal Court decision involved the principle it had outlined in relation to the intention of BRIT in suspending Mr Barclay.
The High Court unanimously overturned the proposition outlined by the Full Federal Court that “the real reason for a person’s conduct is not necessarily the reason that the person asserts”, with High Court Justice Dyson Heydon in particular stating,“How could an employer ever prove that there was no unconscious reason of a prohibited kind? An employer’s inquiries of the relevant employees would provoke, at best, nothing but hilarity”. The High Court decision confirms that it will be the subjective intention of the decision maker that determines the question of liability.
The lessons for employers from this case are:
- Just because a person has a protected attribute does not mean they are immune from disciplinary action;
- The evidence of the employer alleged to have unlawfully taken adverse action remains crucial in defending a claim;
- The onus will remain on the employer to demonstrate that it has not taken action because of a protected attribute;
- In practical terms this will require the employer demonstrating the reasons why it took the action and evidence demonstrating clear and consistent reasoning, supported (if possible) by documentation will remain crucial;
- If an employer can establish it did not take action because of a protected attribute it will have a defence to an adverse action claim.
VECCI welcomes the unanimous decision of the High Court but will continue to call for the removal of the general protections/adverse action provisions introduced by the Fair Work Act.
VECCI can advise employers on aspects of workplace law, including potential adverse action claims. See our website for our full offering.