Board of Bendigo Regional Institute of Technical and Further Education V Barclay
Marshall, Shane, Cavanough, Amanda, University of Western Sydney Law Review
On 7 September 2012, the High Court of Australia unanimously allowed an appeal by the Bendigo Regional Institute of Technical and Further Education ('BRIT') from the Full Court of the Federal Court of Australia. (1) The High Court held that BRIT's Chief Executive Officer, Dr Louise Harvey did not take adverse action against Mr Greg Barclay for a reason prohibited by the Fair Work Act 2009 (Cth) ('the Act'). At the relevant time, Mr Barclay was an employee of BRIT and also the Sub-Branch President of the Australian Education Union ('AEU') at BRIT.
The central issue, at first instance and on appeal, concerned the correct approach to a determination under s 346 of the Act, which prohibits an employer from taking adverse action against an employee because of the employee's union role or activities. From the outset of the litigation, BRIT conceded that it had taken 'adverse action' against Mr Barclay, but denied that such action was taken because of Mr Barclay's industrial activity or association with the AEU in contravention of the Act.
II THE FACTS
The material facts were mostly uncontroversial. Mr Barclay was employed as a senior teacher and was a delegate of the AEU at BRIT. On 29 January 2010, he sent an email to members of the AEU employed by BRIT. The subject line of the email read 'AEU--A note of caution'. It referred to an upcoming audit of BRIT, which was being held for the purpose of securing re-accreditation and funding for the organisation. In the body of the email, Mr Barclay said that he was aware of reports of serious misconduct by unnamed individuals in connection with the preparations for the audit. He did not advise management of such reports before sending the email, which read:
... 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/FRAUDULENT DOCUMENTATION OR PARTICIPATE IN THESE TYPES OF ACTIVITIES ...
A footnote to the email indicated that the message was 'for the named person's use only' and 'may contain confidential, proprietary or legally privileged information'. Despite this, some of the email recipients forwarded the email to management. On 1 February 2010, it was brought to the attention of Dr Harvey.
Dr Harvey considered the email indicated a prima facie contravention of the Code of Conduct for Victorian Public Sector Employees. She met with Mr Barclay the following day and gave him a letter which set out her proposed course of action and asked him to 'show cause' why he should not be subject to disciplinary action for serious misconduct. Mr Barclay was suspended from duty on full pay and required not to attend BRIT premises. His internet access was also suspended pending a full investigation. Mr Barclay and the AEU applied to the Federal Court for a declaration that BRIT contravened s 346 of the Act.
III THE DECISION AT FIRST INSTANCE
At the hearing before Tracey J, Dr Harvey denied having taken adverse action against Mr Barclay because of his membership of the AEU or associated activities. She claimed that she decided to suspend Mr Barclay 'because [she] was of the view that the allegations against him were serious and ... [she] was concerned if Mr Barclay was not suspended he might cause further damage to the reputation of [BRIT] and [its] staff' (2) due to the way in which he raised the allegations of misconduct.
A The Statutory Interpretation Issue
Section 361 of the Act places the onus on the employer to prove on the balance of probabilities that the reason for adverse action was not one which is prohibited. (3) Mr Barclay and the AEU argued that, in determining whether or not action was taken 'because' of the aggrieved person's status or activities, the subjective intentions of the decision-maker are irrelevant and the test to be applied is purely objective. …