Jurisdiction - Australia
Australia – Board Of Bendigo Regional Institute Of Technical And Further Education v Gregory Paul Barclay & Anor [2012] HCA 32.

17 September, 2012


 Legal News & Analysis – Asia Pacific – Australia – Labour & Employment


The long awaited High Court decision in the area of adverse action was
handed down on 7 September 2012. Employers who are able to show by
good evidence that the substantial and operative reason of the decision
maker was not a prohibited reason, will be able to discharge the onus to
prove that the action was not adverse action under the Fair Work Act 2009.
The facts
Mr Barclay was an employee of Bendigo Regional Institute of Technical
and Further Education (BRIT) and the President of BRIT’s branch of the
Australian Education Union (AEU). In January 2010, Mr Barclay sent an
email to members of the AEU employed by BRIT alleging serious misconduct by BRIT employees relating to the production of false and fraudulent documents in relation to an upcoming accreditation audit based on concerns raised by other AEU members. When questioned on these matters by his manager, Mr Barclay refused to provide details of the allegations. BRIT CEO, Dr Louise Harvey, subsequently requested Mr Barclay show cause why he should not be disciplined for this conduct. Mr Barclay was suspended on full pay pending a disciplinary investigation.
The Claim
Mr Barclay and the AEU sought a declaration that BRIT had contravened
section 346 of the Fair Work Act (FW Act) by taking adverse action against Mr Barclay because (among other things) he was an officer of the AEU and had engaged in industrial activity. Under section 361 of the FW Act, the onus is on the employer to prove that the action was not taken for a prohibited reason.
The claim was brought in the Federal Court where Dr Harvey’s evidence was that she had taken action not because of Mr Barclay’s union affiliations, but due to the way he had raised the allegations. The trial judge accepted Dr Harvey’s evidence and dismissed the application. Mr Barclay and the AEU successfully appealed to the Full Federal Court. By special leave, BRIT appealed to the High Court.
The Decision
The High Court delivered three separate judgments unanimously in favour of the employer. On the basis that Dr Harvey’s evidence in the trial was not challenged by either of the parties, the Court confirmed that the action had not been taken for a prohibited reason. Consequently, employers who are able to show that the substantial and operative reason of the decision maker was not a prohibited reason, will be able to discharge the onus. This will generally require evidence by the decision maker of the particular reason for their decision, and the reasoning they actually employed. Notably, the judgment of Gummow and Hayne JJ also favourably refers to the similarities between s 346 of the FW Act and discrimination legislation regarding the notion of a comparator, that is, for example, whether a person who is not a union delegate would be treated in a similar way. This may assist employers in making decisions where there is a risk of an employee making an adverse action claim.

For further information, please contact:


Vanessa Andersen, Partner, Henry Davis York

[email protected]


Bronwyn Maynard, Henry Davis York

[email protected]


Lauren Brignull, Henry Davis York

[email protected]


Homegrown Labour & Employment Law Firms in Australia


Leave a Reply

You must be logged in to post a comment.