The Federal Court has provided some comfort to concerned employers regarding the scope of the new adverse action provisions in the Fair Work Act 2009 (Act).

Under the Act, adverse action includes:

  • dismissing an employee
  • damaging an employee’s ability to do their job
  • changing an employee’s job to their disadvantage
  • treating one employee differently from other employees
  • refusing to employ a potential employee
  • not offering a potential employee all the terms and conditions normally in a job.

Adverse action becomes unlawful when the reason for the adverse action is a reason proscribed under the Act.

This may include discriminatory reasons (such as age, sex, marital status, political opinion etc), as a result of an employee exercising or proposing to exercise a workplace right, or because the employee engages in industrial activities.

It is not necessary that the proscribed reason be the sole or dominant reason for the adverse action taken.

Facts

In Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284 Justice Tracey rejected an employee’s claim that the TAFE had taken unlawful adverse action against him.

Mr Barclay was the sub-branch president of the Australian Education Union (AEU) and union delegate. He was employed by Bendigo TAFE as a senior teacher.

Mr Barclay was suspended on full pay for two weeks after he sent an email to AEU members alleging that several AEU members had informed him that they had witnessed or been asked to create false documents for a TAFE accreditation audit.

The Chief Executive of Bendigo TAFE, Dr Harvey, asked Mr Barclay to ‘show cause’ as to why he should not be disciplined for:

  • the manner in which the allegations were raised (via a broadly distributed email)
  • failing to report the misconduct, and
  • refusing to provide particulars of the allegations.

Dr Harvey also suspended Mr Barclay’s internet access and directed him not to attend work. Dr Harvey advised the employee that she considered his conduct to be in breach of the Code of Conduct for Victorian Public Sector Employees.

In an interlocutory hearing, Bendigo TAFE agreed to lift the suspension on full pay, internet access and the requirement that Mr Barclay not attend work.

The Employee’s adverse action arguments

Mr Barclay maintained that Bendigo TAFE had taken adverse action against him, because Mr Barclay engaged in the following activities:

  • he was a union officer (see s346(a) of the Act)
  • he engaged in industrial activity (see 346(b), 347(b)(v) and (b)(iii) of the Act), or
  • he exercised his workplace right to discuss issues with AEU members under the Victorian TAFE Teaching Staff Multi-Business Agreement 2009 (see s340(a)(ii), 341(1)(a), 341(1)(b) and 341(2)(j).

Mr Barclay claimed that the asserted adverse action undertaken by Bendigo TAFE included:

  • suspending him from duty
  • suspending his internet access
  • requiring him not to attend work, and
  • taking disciplinary action against him.

Bendigo TAFE acknowledged that it had taken adverse action in the form of suspension from duty, suspension of Mr Barclay’s internet access and the requirement that he not attend work. It denied that the disciplinary action taken was taken because of an impermissible reason.

The decision

The Court held that Bendigo TAFE had not taken unlawful adverse action.

Justice Tracey stated that evidence of the employer’s subjective reason was relevant to whether the adverse action was unlawful and that “[i]t has never been the case that an employer was prevented, by federal industrial legislation, from taking prejudicial action against an employee who happened to be a union member or a union official.”

His Honour distinguished the recent interlocutory case of Jones v QTAC (2009) in which the court held that, on the balance of probabilities, disciplinary proceedings may constitute adverse action under the Act.

Justice Tracey noted that whether disciplinary proceedings amounted to adverse action was subject to a number of variables, such as, the impact on the employee, the bona fides of the employer and the rules under which the action was taken.

Key to the Court’s decision was that it was accepted that Bendigo TAFE had not instigated the disciplinary proceedings for any reason that included the fact that Mr Barclay was a union delegate, that he participated in industrial action or that he had a workplace right.

Lessons for employers

The key lessons for employers out of the Bendigo TAFE decision are:

  • To ensure that managers understand the new general protection provisions and this is reflected in training and procedures.
  • That disciplinary matters, transfers, demotions and changes in terms and conditions of employment are undertaken fairly and reasonably and not in response to an employee exercising a workplace or industrial right.
  • Employers have appropriate processes for managing complaints, including managing corporate memories because some adverse action claims can be commenced within six years of the event.

Despite the new laws in relation to adverse action, employers should take disciplinary action where appropriate, provided that that action is initiated on a bona fide basis and in accordance with any procedural rules, and not the basis of the employee’s affiliation with a union.