Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 – High Court rules in employment case

The High Court has handed down its judgment in the case of Board of Bendigo Regional Institute of Technical and Further Education v Barclay, allowing the appeal and setting aside the previous decision of the Federal Court. 

The fact of the case involve disciplinary action against Mr Barclay by his employer, Bendigo Regional Institute of Technical and Further Education (BRIT). In early 2010, staff of BRIT were preparing documentation for an upcoming re-accreditation audit to be conducted by the Victorian Registration and Qualifications Authority. Mr Barclay was employed by BRIT as a Team Leader, and also held the position of President of the BRIT Sub-Branch of the AEU.

Between late 2009 and early 2010, members of the AEU employed by BRIT approached Mr Barclay to raise concerns regarding inaccurate information being included in documentation prepared for the re-accreditation audit. On 29 January, in his capacity as President of the BRIT Sub-Branch of the AEU, Mr Barclay sent an email to all AEU members employed by BRIT cautioning them not to agree to be part of any attempt to create false or fraudulent documentation. Copies of this email were seen by senior managers at BRIT, and Mr Barclay was suspended from his position.

Section 346 of the Fair Work Act 2009 (Cth) ("the Fair Work Act") prohibits an employer from taking adverse action against an employee because that employee is an officer or member of an industrial association, or because that employee engages or proposes to engage in particular kinds of industrial activity.  Under s 361 of the Fair Work Act, adverse action taken against an employee will be presumed to be action taken for a prohibited reason unless the employer responsible for taking the adverse action proves otherwise.

The primary judge found that the decision-maker had not taken adverse action against Mr Barclay for any reason associated with his position as an officer of the AEU or with his engagement in industrial activity, and that BRIT therefore had not contravened s 346 of the Fair Work Act. In upholding an appeal from the decision of the primary judge, the Full Court held that because the sending of the email amounted to engagement in industrial activity, and because the decision-maker’s reasons for taking adverse action against Mr Barclay were "founded upon" the sending of the email, the reasons why BRIT had taken adverse action against Mr Barclay "included the fact that he was an officer of the AEU and the fact that he had engaged in industrial activity." On that basis, their Honours held that BRIT had contravened both s 346(a) and s 346(b) of the Fair Work Act.  This decision was then appealed in the High Court (the current proceedings).

The High Court in this case concluded that the primary judge had adopted the correct approach to the relevant provisions. They found that the decision-maker gave evidence of her reason for taking adverse action against Mr Barclay and also gave positive evidence that this was not for a prohibited reason and that she would have taken the same action against a person circulating a similar email who was not an officer of the AEU.  That evidence was accepted by the primary judge and his findings in that regard were not challenged before the Full Court.  The appellant 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.  As such, the appeal was upheld and consequential orders made. 

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