In handing down its judgment last week in Board of Bendigo Regional Institute of Technical and Further Education v Barclay, the High Court has provided important clarification for determining what is "unlawful adverse action". The High Court narrowed the scope of the burden on the employer.
Background
Under the Fair Work Act (Act), it is unlawful for an employer to take adverse action against an employee (such as termination of employment or altering the position of the employee to the employee's detriment) if it does so for a prohibited reason specified in the Act. These prohibited reasons include the employee either being a union officer or engaging in industrial activity.
In February this year, the Full Federal Court had found that the Institute had engaged in unlawful adverse action against Mr Barclay, a delegate of the Australian Education Union. This related to an email Mr Barclay sent union members in which he alleged unnamed Institute staff had placed pressure on other staff to falsify documentation for upcoming reaccreditation. The Institute then suspended Mr Barclay on full pay and asked him to show cause why he should not be disciplined for failing to report this alleged fraudulent behaviour.
In reaching its conclusion, the Full Federal Court had determined that it was necessary to look beyond the employer's stated intent for the adverse action to the "real reasons" for doing so, even if the employer were unconscious or unaware of these real reasons.
The High Court's ruling
While it was accepted that Mr Barclay's suspension and requirement to show cause both amounted to adverse action, the High Court unanimously overturned the Full Federal Court's finding that it had been unlawful. In particular, the High Court rejected the approach of weighing the employer's unconscious state of mind over direct evidence of the employer's state of mind, intent and purpose for taking the action.
Onus of proof still on employer
While this judgment is useful to employers defending adverse action claims, it is important to bear in mind that an employer has the onus of proving that adverse action did not occur for a prohibited reason, rather than the employee proving it did. Simply claiming that it was not for a prohibited reason is unlikely to be sufficient.
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