Board of Bendigo Regional Institute of Technical and Further Education v Gregory Paul Barclay &  HCA 32 (7 September, 2012)
When the CEO of Bendigo TAFE disciplined an employee, who was also a union delegate, for alleged serious misconduct, she was well within her rights to do so, according to the High Court. The employee had impugned the reputations of unnamed colleagues in an e-mail, claiming corrupt practices ahead of a key audit. The CEO suspended the employee pending an investigation, but the employee and his union the AEU, took the TAFE to court.
The initial judgement was in favour of the CEO. On appeal a full bench, by a two to one majority, decided the CEO had breached the ‘”adverse actions” provisions of the Fair Work Act. They based their reasoning on the fact the employee was a union member, that the e-mail went to other union members and that despite the CEO’s unshaken evidence about why she took the adverse action, the “real reason” was because the employee was a union member. They reached an astonishing conclusion about the CEO’s state of mind. They said :
“The real reason for a person’s conduct is not necessarily the reason that the person asserts, even where the person genuinely believes he or she was motivated by that reason. The search is for what actuated the conduct of the person, not for what the person thinks he or she was actuated by. In that regard, the real reason may be conscious or unconscious, and where unconscious or not appreciated or understood, adverse action will not be excused simply because its perpetrator held a benevolent intent.”
The High Court dismissed this approach, making it very clear that the legislation did not require an employer to prove not only their conscious, but sub-conscious reasons for action. In effect, they ridiculed this proposition. If this approach were permissible, then it would be virtually impossible for an employer to prove his or her innocence, as the reversal of onus of proof in these cases requires.
This outcome, which was opposed by the federal government, means that union delegates or members or not given any special protection and must be treated exactly the same as any other employee – if they break the rules, they are subject to the same consequences. There is no immunity.