The High Court has overturned a Full Federal Court decision which found that an “objective” test applies when determining the question of whether an employer has taken adverse action for a reason prohibited under the Fair Work Act 2009 (Cth) (FW Act).

The employee, in his capacity as the sub-branch president of a union, sent an email to union members stating that several members had witnessed or been asked to produce fraudulent documents as part of an audit of the employer. The employer suspended the employee and commenced disciplinary proceedings on grounds including inappropriate dissemination of the email and failure to report the allegations to management. The employee claimed that this constituted adverse action taken against him because of his union role.

At first instance, the Federal Court accepted the employer’s subjective evidence that the suspension was not motivated by the employee’s union membership or activities. On appeal, a majority of the Full Federal Court found in favour of the employee by applying an objective test.

On appeal, the High Court found that the reason for the employer’s adverse action was not the employee’s union position and activities. Two of the five Justices held that an employer will be found to have taken adverse action if the prohibited reason was a “substantial and operative” reason for the decision, and this is a "question of fact”. The Court found that direct, subjective evidence of the decision maker, which is not contradicted by other evidence, can be relied upon by an employer to disprove an adverse action claim.

Board of Bendigo Regional Institute of Technical and Further Education v Gregory Paul Barclay & [2012] HCA 32