By Kristen Lopes
The High Court has confirmed that the subjective intentions of the employer are relevant in determining whether it has taken adverse action against an employee.
Federal Court finds that Bendigo TAFE took unlawful adverse action against union delegate
The case Board of Bendigo Regional Institute of Technical and Further Education v Barclay  HCA32 was the first Fair Work Australia case heard in the High Court. It dealt with the general protection provisions. The hearing was conducted on 29 March 2012 and the decision was released on 7 September 2012. (For more information about this case please see our earlier article Union members and adverse action under the Fair Work Act.)
Employee claims management had engaged in serious misconduct
In the Barclay decision, the Federal Court found that Bendigo TAFE had undertaken unlawful adverse action against an employee, Mr Barclay, who was also a union delegate. Mr Barclay had sent an email to union members on his employer’s email, claiming that members of management had engaged in serious misconduct. The email had been sent in his capacity as the president of a sub-branch of the union.
When Bendigo TAFE learned of Mr Barclay’s email, it required him to attend at a show cause hearing to explain why he should not be disciplined for failing to report to Bendigo TAFE the alleged misconduct which allegedly brought the TAFE into disrepute. As a result of the show cause hearing, Mr Barclay was suspended on full pay and his email use was suspended.
Did Mr Barclay send the email as a union member or as an employee?
The majority of the full bench of the Federal Court (2 of 3) held that the email was sent by Mr Barclay in his capacity as a union member, not as an employee, and he was therefore engaging in “industrial action” which was a protected workplace right under section 341 of the Fair Work Act.
The Federal Court concluded that Bendigo TAFE had engaged in adverse action, even though the CEO testified that she had only taken disciplinary action against Mr Barclay for failing to notify the TAFE of the allegations in his capacity as an employee.
Should the court refer to an employer’s subjective intention?
On appeal to the High Court, Bendigo TAFE argued that the court should refer to an employer’s subjective intention when determining whether an employer engaged in adverse action in relation to an employee who has exercised a workplace right. It argued that consideration should be given to the employer’s stated reason for taking the action alleged to be adverse.
However, the Federal Court disagreed and held that an employer’s subjective intention was not relevant in the determination of whether adverse action had been taken against an employee engaging in industrial action.
Federal Court decision creates uncertainty for employers
The Federal Court’s ruling arguably afforded special protection to union members, providing them with a level of immunity that is not contained in the Act. Further, the Federal Court’s decision failed to taken into account that an employee’s role as a union official may, in circumstances, impact upon their employment duties.
The Federal Court decision created uncertainty for employers contemplating taking disciplinary action against an employee, given that the ruling suggested that employers could potentially face exposure as a result of disciplining employees who engage in industrial action.
Employers must provide evidence of the reason behind the action taken
The High Court unanimously overturned the Federal Court decision, confirming that union members who have engaged in misconduct can be disciplined like any other employee. The High Court has confirmed that the subjective intentions of the employer are relevant in determining whether it has taken adverse action against an employee, contrary to the provisions of the Act.
Therefore, it is critical that employers tender evidence of the reason behind the action taken to demonstrate that the action was not taken for a prohibited reason.
How can employers minimise the risk of adverse action claims?
Despite the welcomed decision of the High Court, it is important to remember that as a result of the general protection provisions of the Act, commonplace employer actions may be challenged as adverse actions. To minimise exposure to adverse action claims, employers should:
- implement and enforce clear policies and procedures which are compliant with the Act
- ensure that managers and human resources personnel understand the company’s statutory obligations
- ensure that management maintains written records of employee requests for leave, overtime and flexible working arrangements
- understand the prohibited reasons for taking adverse action under the Act
- ensure that reasons for taking actions, including disciplinary action, against employees are carefully considered and clearly documented
- ensure that all employee complaints are treated in a serious manner and are fully investigated
Employees have workplace rights and are protected from discrimination
By way of reminder, the Fair Work Act 2009 (Cth) introduced a new form of employee protection under Part 3-1 of the Act dealing with general protections or what has commonly become referred to as “adverse action” claims in section 340, 341and 342 of the Act.
Defined workplace rights are protected and employees are further protected from workplace discrimination as defined under the general protection provisions. A workplace right is defined broadly under the Act and includes a benefit, role or responsibility under a workplace law, instrument or order made by an industrial body.
In addition, discrimination is broadly defined where the Act provides that it is unlawful for an employer to take adverse action against an employee because of their race, colour, gender, sexual orientation, age, physical or mental disability, marital status, family status or carer’s responsibility, pregnancy, religion, political opinion, national extraction or social origin.
General protection provisions affect both large and small businesses
The general protection provisions are available to prospective, current and former employees in a broad range of circumstances. There is no qualifying period with respect to lodging a general protections application and access is the same for employees working for small business employers and those with 15 or more employees.
A general protection application must be lodged within 60 days of the termination of employment or the alleged adverse action.
General protection applications and reverse onus of proof
Claims filed under the general protection provisions have a reverse onus of proof. An employer must therefore demonstrate that the action at issue was taken for the purported reason and was not taken for an improper purpose.
Where a claim is successful, relief will be provided if prospective, current or former employees have been discriminated against, victimised or adversely affected as a result of an employee exercising a workplace right or engaging in industrial action. For an adverse action to be found, there must be conduct by an employer which is related to the exercise of a workplace right, industrial action or discrimination.
When can an employee lodge a general protection claim?
The case law demonstrates that an employee may lodge a general protection claim in the event that:
- an employee’s employment has been terminated
- an employee is required to attend a show cause meeting
- an employee is suspended
- an employee’s email use is suspended
- an employee makes a request for leave or payment of overtime
- an employee exercises a right not to work excessive hours
- an employee files a work health and safety claim
- an employee makes a request for a flexible working arrangement
- an employee’s position has been altered
and the employee has been treated less favourably as a result of exercising or proposing to exercise such a workplace right.
Greater damages for general protection claims than for unfair dismissal claims
Although damages are limited to six months’ compensation where an employee lodges an unfair dismissal complaint, damages are broad where an employee lodges a general protection claim. Damages may include uncapped compensation claims and an interim injunction to restrain an employer from taking action if there is a threat of termination.
In addition, where found to have breached these provisions, an employer may face a penalty of up to $33,000 per infringement.