Bendigo TAFE successful in its appeal against controversial adverse action ruling
The decision of Bendigo Regional Institute of TAFE v Barclay [2012] HCA 32 has been delivered by the High Court. The High Court unanimously allowed an appeal by the Bendigo Institute of Technical and Further Education (TAFE) from a decision of the Full Federal Court, which found that the TAFE had taken adverse action against an employee.
Background
The employee, Mr Barclay, was a union delegate who sent an email to all members of the Australian Education Union employed at the TAFE, advising employees of allegations that management was asking employees to falsify documentation relating to an accreditation audit process. The TAFE suspended Mr Barclay on the grounds that as an employee he should have reported the alleged misconduct to management before publishing the allegation in the workplace and that his email damaged the reputation of the employer. Mr Barclay claimed that the suspension constituted adverse action for the prohibited reason that he was engaging in union related activity.
The trial judge accepted evidence given by the decision-maker of the TAFE that she had not taken adverse action against Mr Barclay because of his industrial activities or association, but because of the inappropriate way in which he raised the allegations of misconduct.
The Full Court of the Federal Court upheld an appeal by Mr Barclay, finding that the TAFE did take adverse action for a prohibited reason and held that in adverse action cases, the "real reason" for the behaviour at the centre of proceedings "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". This meant that a person could breach the adverse action provisions even if they honestly believed they were not acting for a prohibited reason.
Decision of the High Court
The High Court rejected the Full Court's reasoning and upheld the trial judge's findings. The High Court held that the evidence of the decision-maker, which was accepted by the trial judge and not challenged by the Full Court, established that the adverse action taken against Mr Barclay had not been for a prohibited reason.
Importantly, the High Court held:
- it is erroneous to treat the onus imposed on an employer by s 361 as being made heavier (or rendered impossible to discharge) because an employee affected by adverse action happens to be an officer of an industrial association. A person who happens to be engaged in industrial activity should not have an advantage not enjoyed by other workers
- it is an error to treat the employee's union position and activity as inextricably linked with the adverse action and a factor which can never be disassociated from the adverse action.
What this means for employers
This decision can be viewed as a win for employers as it goes to restoring the balance between employers and employees. It confirms that an adverse action claim can be successfully defended if the employer gives evidence, which is accepted by a court, that the employer acted for an "innocent" reason and not a prohibited reason.
The same reasoning will be applicable to workers who happen to be occupational health and safety representatives and bring adverse action claims, alleging that action was taken because they have raised safety issues.
However, adverse action claims will remain an attractive cause of action for many employees seeing it as an easy alternative to unfair dismissal, due to the reverse onus and the extension of protections.
It remains important for employers to be aware of the prohibited reasons for taking adverse action and employers should:
- ensure that the reasons for taking action against an employee, which may have an adverse effect, are unrelated to any protected attributes or activities
- ensure the decision-making process is properly documented before acting so in the event of proceedings, contemporaneous evidence of the reasons for the decision exist.
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.
