No adverse action taken - High Court unanimously allows appeal in Barclay

On Friday 7 September 2012 the High Court of Australia (HCA) handed down its much anticipated judgment in the Barclay matter which clarifies the position as to how the conduct of a person or entity that is alleged to have breached the adverse action provisions of the Fair Work Act 2009 (Cth) (FW Act) is to be properly assessed. It is a decision that will be welcomed by employers and strengthens employers' rights when performance managing or disciplining union employees.

Facts

Mr Gregory Barclay (Barclay) was an employee of the Bendigo Regional Institute of Technical and Further Education (BRIT), and also an officer of the Australian Education Union (AEU).

On 29 January 2010, Barclay sent an email to all of BRIT's AEU members, making allegations as to alleged serious misconduct by BRIT personnel.

The relevant allegations were not reported to BRIT management when Barclay first became aware of them. Barclay also refused BRIT's requests to provide additional information in relation to the allegations.

BRIT suspended Barclay on full pay pending a disciplinary investigation in relation to his conduct.

Barclay challenged the decision to suspend him on the basis that a reason why he was disciplined was his union affiliation. He was unsuccessful at first instance.

Barclay and the AEU appealed to the Federal Court of Australia (FCA) alleging that BRIT's actions breached the adverse action provisions of the FW Act, on the basis that Barclay was suspended for a reason that included Barclay's union affiliation.

At FCA hearing BRIT's CEO gave evidence that she had not taken Barclay's union affiliation into account but rather took the action because of the inappropriate way in which he had raised the allegations.

The trial judge's decision was reversed on appeal by the Full Federal Court (FFC). The majority held that BRIT CEO's subjective intention (which was not challenged by Barclay or the AEU) was not determinative.

The majority further held that it was necessary to determine the "real reason" for the taking of action, which may not necessarily be the reason the person asserts or thought was the reason upon which they acted.

BRIT appealed to the HCA.

What the High Court found

In a unanimous decision, the HCA:

• allowed BRIT's appeal in relation to the FFC decision.
• found that BRIT's CEO did not breach the adverse action provisions of the FW Act 2009 (Cth). As a result the action taken against BRIT must fail.

In reaching this decision the HCA found that the evidence from BRIT's CEO, being evidence of the subjective intent of the relevant decision maker, established that there had been no breach of the adverse action provisions of the FW Act.

Implications

This landmark decision will dramatically shift the approach of courts in their determination of the actual reasons of any alleged adverse action. An employer's uncontroverted subjective intentions will now, by and large, be determinative. There will be no consideration given to the "unconscious" state of mind of the decision maker. This will have considerable ramifications for employers particularly those who has a union presence in their workplace.

Citation: Board of Bendigo Regional Institute of Technical and Further Education v Gregory Paul Barclay & Anor [2012] HCA 32 (7 September 2012).

This article was written by Sina Mostafavi, Associate.

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