A Federal Court full court majority has overturned last year's
controversial decision regarding adverse action. To read our
coverage of last year's decision, please click
here.
The case
A senior teacher at Bendigo TAFE, who was also the Australian
Education Union (AEU) sub-branch president,
emailed a number of AEU members alleging that several colleagues
had informed him they had been witness to or had been asked to be
part of producing 'false and fraudulent documents' for an audit
being conducted for the TAFE's re-accreditation.
Mr Barclay was suspended, following what Bendigo TAFE described
as serious misconduct.
The case history leading up to the appeal
As we previously reported, this was the first case to examine
the new adverse action provisions under the Fair Work Act
2009 (Cth) (Act).
Mr Barclay alleged that Bendigo TAFE had suspended him
unlawfully, because its decision to take action against him was
based on his association with (and membership of) the union, a
prohibited reason under the Act.
At first instance, the court found that Bendigo TAFE had not
acted, by disciplining and suspending Mr Barclay, for any
prohibited reason, but that it had acted to address serious
allegations raised by the teacher and to prevent further damage to
their reputation and staff.
Findings on appeal
On appeal, the court ultimately found that the employer had
breached the adverse action provisions when it disciplined Mr
Barclay over the email.
Justices Peter Gray and Mordy Bromberg said the central question
under s346 (the general protections provision) was why the
aggrieved person was treated the way that he or she was - and,
in determining this, it was not only the employer's intent that
mattered. Although the state of mind or subjective intention of
that person would be centrally relevant, what is required is a
determination of the 'real reason' for the conduct.
Their Honours went on to comment that the real reason is not
necessarily the reason that the person asserts, even if that person
genuinely believes he or she was motivated by that reason. The real
reason could be conscious or unconscious, and where it was
unconscious and not appreciated or understood, adverse action would
not be excused simply because the employer had no malicious
intent.
Importantly, their Honours held that all of the relevant conduct
in issue in this case involved Mr Barclay in his union capacity and
none of it involved him in his capacity as an employee of Bendigo
TAFE. That is, Mr Barclay's interaction with other AEU members - in
receiving information, maintaining the confidence of the
information received and communicating with AEU members through his
email - was done for and on behalf of the AEU.
Justices Gray and Bromberg said that if an employer has a basis
for complaint, or a legal claim arising out of such conduct, the
complaint or claim ought to be addressed to the union, because the
source of such complaint or claim is the conduct of the union.
Furthermore, if employers were able to punish those of its
employees who are union members or officers for the conduct of
their union, the protection to those persons afforded by the Act
would be illusory.
The case was remitted to the primary judge to determine
penalties.
What does this mean for employers?
This decision means that an employee who is performing the
functions of a union cannot be subject to discipline for any
conduct which is 'union conduct'. The reasoning of the court
suggests it would not seem to matter that an employee sends an
email that was inaccurate or unsubstantiated and resulted in actual
damage to the employer. Such claims or complaints ought to be
addressed to the union concerned.
Employers should take heed of this decision and note that it
will be all but impossible to take action against a unionised
employee if his or her conduct is in some way related to the
activities of the union.
Employers should seek advice before taking any
disciplinary step against an employee where the conduct complained
of relates to their activity as a union member.
(Authored by: Joanna Shields, Cornwall Stodart)