07 Sep 2012

High Court decides Barclay adverse action case

Adverse action under the Fair Work Act is one of the most complicated day-to-day issues for employers. Dan Trindade talks to BRR Media about the long-awaited Barclay decision hot off the bench: what did the Court decide, and how will it affect your business?

Transcript

High Court decides Barclay adverse action case
David Bushby, BRR Media
Dan Trindade, Partner, Clayton Utz

David Bushby
Today BRR Media speaks with Dan Trindade, a Partner at the Workplace Relations and Employment and Safety Group at Clayton Utz based in Melbourne. Welcome to BRR Media Dan.

Dan Trindade
Thanks David, good to be with you.

David Bushby
Dan we've just had the High Court hand down its judgment on the very controversial case of Bendigo TAFE vs Barclay. Who won?

Dan Trindade
Well Bendigo TAFE won David - the High Court has unanimously overturned the decision of the Full Court of the Federal Court and restored the decision of the judge at first instance.

David Bushby
And just very briefly can you recap on what this case was about and what it involved?

Dan Trindade
The case was about disciplinary action which was taken against an employee and whether the reason or reasons for the action included union activity. At first instance Justice Tracey in the Federal Court accepted as honest the evidence of the decision-maker that the union activity wasn't one of the reasons for the action taken.

That decision was overturned by the Full Court of the Federal Court in a two to one majority decision, and the Full Court of the Federal Court interestingly, probably for the first time in Australian law, held that the evidence of the subjective intention of the decision-maker was not enough to satisfy the reverse onus provisions of the Act, and was not enough, in the Court's words, to disassociate the union activities from the action taken.

What the High Court has done is reverted back to the position that was previously the case, where the primary focus of the Court is what was in the mind of the decision-maker, and if the Court accepts as honest the evidence given that the union activity or protected attribute plays no part in the decision then that should be enough to satisfy the reverse onus.

David Bushby

And Dan was this the expected result?

Dan Trindade
Well I think it was. While you can never quite predict how a court might go, looking at the transcript the Court appeared to have some trouble with a number of the submissions that were made by the parties who were in support of the decision of the Full Court of the Federal Court.

David Bushby
And I guess now that we have the decision, what does it mean overall for business?

Dan Trindade
Well I think it removes a lot of uncertainty and potential exposure that businesses have. Under the Full Court of the Federal Court's decision businesses were in between a rock and a hard place in many of these decisions where they knew what the right decision to make was, but they were concerned about those decisions being overturned because of some element to that might be said to have unconsciously affected the decision. So not something front of mind, but something that may have been in the background that could be said to have unconsciously affected the decision-maker.

Now businesses can really focus on making the right decisions and as long as they can be clear as to what's in the mind of the decision-maker, and have those well documented, then if those things are then accepted by the Court they will generally be allowed to proceed with those decisions without being overturned on the basis of the adverse action general protections provisions.

David Bushby
And just a final question Dan, we had a recent report from the Fair Work Review Panel which looked at this case in particular, and now that we have the result can we expect anything further to come from that?

Dan Trindade
Well the Fair Work Review Panel essentially took the view (without saying it) that if the High Court had not come down this way, then they suggested legislative change to again revert back to what is in the subjective intention of the decision-maker. So it appears that on the basis of the High Court decision no legislative change will be required as the High Court's decision appears to accord with the suggestions made by the Review Panel.

David Bushby
Well Dan thank you so much for giving your insights so close to the decision being handed down, really appreciate it. Thanks for your time.

Dan Trindade
You're most welcome.

David Bushby
That was Dan Trindade, a Partner in the Workplace Relations Employment and Safety Group at Clayton Utz in Melbourne. If you have any questions for Dan about this interview please send a message to dtrindade@claytonutz.com.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.