High Court — Bar­clay Deci­sion — Stop Press 

The High Court of Aus­tralia unan­i­mous­ly deter­mined that the first instance deci­sion of Jus­tice Tracey in the Fed­er­al Court of Aus­tralia was the cor­rect one, there­by over­turn­ing the deci­sion of the Full Bench of the Fed­er­al Court.

Mr Bar­clay was an Aus­tralia Edu­ca­tion­al Union (AEU) rep­re­sen­ta­tive in his work­place, Bendi­go Region­al Insti­tute of Tech­ni­cal and Fur­ther Edu­ca­tion (Bendi­go Tafe). Sev­er­al AEU mem­bers had expressed con­cerns about false and fraud­u­lent doc­u­ments being pre­pared at the Bendi­go Tafe. These mem­bers informed Mr Bar­clay they did not wish any fur­ther action to be tak­en or their names disclosed.

After a num­ber of dif­fer­ent such com­plaints made by employ­ees to Mr Bar­clay, he sent an email to AEU mem­bers at Bendi­go Tafe advis­ing that some mem­bers had made such claims and that if an employ­ee was feel­ing pres­sured they could con­tact the AEU for sup­port and advice. This email came to the atten­tion of Man­age­ment of Bendi­go Tafe.

Mr Bar­clay attend­ed a meet­ing with the CEO of Bendi­go Tafe, Dr Har­vey, at which he was giv­en a let­ter ask­ing him to show cause why he should not be sub­ject to dis­ci­pli­nary action for seri­ous mis­con­duct. Bendi­go Tafe then sus­pend­ed Mr Bar­clay on full pay on the basis he had breached the code of con­duct for Vic­to­ri­an Pub­lic Sec­tor Employees.

Mr Bar­clay brought an action claim­ing he had been the sub­ject of adverse action (the sus­pen­sion) under the Fair Work Act 2009 (Cth) (the Act) for a pro­hib­it­ed rea­son. A pro­hib­it­ed rea­son includ­ed because an employ­ee is an offi­cial of an indus­tri­al asso­ci­a­tion or engages in indus­tri­al activity.

Under s 361 of the Act Bendi­go Tafe bore the bur­den of prov­ing they had not sub­ject­ed Mr Bar­clay to an adverse action for a pro­hib­it­ed reason.

The HCA held that Bendi­go Tafe had not tak­en adverse action for a pro­hib­it­ed rea­son on the basis the sus­pen­sion was not because of the ​“indus­tri­al activ­i­ty” but because Bendi­go Tafe was con­cerned that Mr Bar­clay had not report­ed con­cerns about the fraud­u­lent prac­tices direct­ly to management.

Jus­tices French and Cren­nan not­ed that the bur­den for an employ­ee to prove that adverse action was not for a pro­hib­it­ed action was not made heav­ier because the employ­ee is an offi­cer of an indus­tri­al asso­ci­a­tion. Fur­ther­more the fact Mr Bar­clay was an offi­cer of an indus­tri­al asso­ci­a­tion did not mean that nec­es­sar­i­ly had some­thing to do with the adverse action tak­en against him.

In their words Bendi­go Tafe,

​“dis­charged the bur­den cast upon it to show that the rea­son for the adverse action was not a pro­hib­it­ed rea­son, and that Mr Bar­clay’s union posi­tion and activ­i­ties were not oper­a­tive fac­tors in him being required to show cause.”

It was rel­e­vant that Dr Har­vey had giv­en evi­dence which was accept­ed as con­vinc­ing and coher­ent. Dr Har­vey’s evi­dence was that she would have made the same deci­sion whether Mr Bar­clay was an offi­cer of an indus­tri­al asso­ci­a­tion or not.

It was also sig­nif­i­cant that Mr Bar­clay did not chal­lenge the fac­tu­al find­ings of the first instance deci­sion of Jus­tice Tracey in accept­ing Dr Har­vey’s evi­dence, and find­ing that the Bendi­go Tafe had not tak­en adverse action against Mr Bar­clay for a pro­hib­it­ed reason.

The Full Court of the Fed­er­al Court of Aus­tralia had drawn a dis­tinc­tion between con­scious and uncon­scious rea­sons, believ­ing that the real rea­son for some con­duct could be uncon­scious. This approach was dis­missed by the High Court, and labelled by Jus­tice Hey­don as ​“inde­fen­si­ble”. He stat­ed

​“There is no evi­dence what­ev­er that sup­ports the propo­si­tion that Dr Har­vey ​“uncon­scious­ly” employed pro­hib­it­ed rea­son­ing in tak­ing action against Mr Barclay.” 

The con­fi­dences entrust­ed to Mr Bar­clay by his fel­low employ­ees, indi­cat­ed con­duct that breached the employ­er’s stan­dards and Mr Bar­clay in not inform­ing man­age­ment of the con­duct may have breached the code of con­duct for the Vic­to­ri­an Pub­lic Sec­tor Employ­ees. Bendi­go Tafe was suc­cess­ful in argu­ing that this and not his AEU mem­ber­ship or indus­tri­al activ­i­ty was the rea­son for his suspension.