High Court defines scope of adverse action

The High Court handed down its decision today in the highly anticipated Board of Bendigo Regional Institute of Technical and Further Education (BRIT) v Barclay matter and in doing so has defined the scope of adverse action claims in this country.  The High Court unanimously allowed the appeal from BRIT against a ruling of the Full Court of the Federal Court which had earlier found that BRIT’s CEO, Dr Louise Harvey, had taken action against Mr Gregory Barclay, an employee of BRIT and Sub-branch President of the Australian Education Union (AEU).

The case concerned an email sent by Mr Barclay reporting that several members of the AEU had witnessed persons being asked, or had been directly asked, to produce false or fraudulent documents for a pending reaccreditation audit at BRIT.  Mr Barclay signed off the email in his capacity as the Sub-branch President of the AEU.  The email did not specify any particular instance where documents had been falsified or the identities of any person/s allegedly involved in the falsification of documentation.

As a result of the email, BRIT suspended Mr Barclay, pursuant to the Code of Conduct for Victorian Public Sector Employees, on full pay for failing to report the alleged misconduct to BRIT’s senior management, and for publicly making unfounded misconduct allegations which brought BRIT into disrepute.

One of the central matters resolved by the High Court was whether an objective or subjective test is to be used to determine whether adverse action taken by a decision maker was for a prohibited reason under the general protection provisions of the Fair Work Act (Act).  BRIT contended that both the Act and the historical intention behind the legislation was for a subjective test be used to determine whether the action was taken for reasons that include, in some part, a prohibited reason.

The High Court however ruled that Dr Harvey’s evidence, which was accepted by the trial judge and was not challenged before the Full Court of the Federal Court, established that the adverse action taken against Mr Barclay had not been for a prohibited reason.  In addition to accepting the evidence of Dr Harvey, the High Court also rejected Barclay’s argument that the employer was required to objectively establish that its reasons for taking adverse action were disassociated from any prohibited reason.

Whilst this case ultimately turned on the credibility of the employer’s evidence, it now sets the benchmark for adverse action claims and will act as a guideline for employers who may become obliged to take adverse action against employees in the course of managing the workplace.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.