Employer groups have welcomed the unanimous ruling by the High Court of Australia in the long-running Barclay case – ultimately the court found in favour of Bendigo TAFE.
The case of Barclay v The Board of Bendigo Regional Institute of TAFE began as an adverse action claim over disciplinary action which was taken against the employee. Whether the reason for the disciplinary action (ie the adverse action) was a result of the employee’s union activity was hotly debated. The case initially was heard in the Federal Court, where it was accepted that the employer’s adverse action against the employee was not as a result of the union activity.
However, on appeal it was controversially decided that there was not enough evidence to prove that the adverse action hadn’t at least in part been a result of the employer’s ‘subconscious’ association of the employer with the union activity. “If adverse action is taken by an employer in response to conduct of a union, it is impossible for that employer to disassociate or divorce from that conduct its reason for the taking of the adverse action simply by characterising the activity of the union as the activity of its employee,” the majority of the bench found at the appeal.
It was the first time in Australian law that such a decision had been made, and not surprisingly the matter progressed to the High Court.
The court accepted that the Bendigo Regional Institute of Technical and Further Education (BRIT) chief Dr Louise Harvey had not taken adverse action against Barclay because of his union activity. Instead it accepted that the disciplinary action was a result of the inappropriate way in which he had raised allegations of serious misconduct.
The Australian Chamber of Commerce and Industry (ACCI) chief Peter Anderson had branded the appeal decision an ‘impossible burden’ on the shoulders of employers and welcomed the court’s decision. “The Court has said that credible countering evidence from employers about the actual purpose of their conduct was a sufficient legal defence, without having to read the mind of the disgruntled employee,” Anderson said in a statement.
If the court had not ruled this way, an almost impenetrable shield against legitimate disciplinary action against unionists would have existed, he added.
According to employment law experts at Lander & Rogers Lawyers, the key takeaway for employers in this case is that it establishes a precedent, that the court will not take into account an employer’s subconscious reasoning for an adverse action. “The High Court's decision provides much needed relief for employers, who could otherwise have great difficulty in discharging the reverse onus of proof in relation to adverse action claims brought by or on behalf of union officers who had engaged in conduct warranting disciplinary action in their capacity as union officers,” Lander & Rogers said in a statement.
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