Barclay v The Board of Bendigo Regional Institute of TAFE  FCA 284
The general protection provisions of the Fair Work Act 2009 (Cth) have been the subject of much discussion and conjecture, particularly with respect to the broadening of rights of employees. In the absence of case law, the extent to which the provisions may have broadened employee rights has been unknown. Now, in the first decision under these provisions an employer’s investigation of alleged employee misconduct and subsequent requirement to show cause has been upheld and found not to be adverse action.
In this adverse action application an employee of the Bendigo Regional Institute of TAFE (BRIT) made an application to the Federal Court alleging adverse action in relation to his workplace rights.
The employee, a senior teacher at BRIT and also an officer of the Australian Education Union (AEU) was suspended from duties when he sent an email to other AEU members stating that he was aware that union members had been asked to create fraudulent documents for the upcoming audit of TAFE’s accreditation process. The email warned AEU members not to be involved in the creation of fraudulent documents.
The email was subsequently forwarded to management within BRIT, who were concerned that these allegations - which had not been substantiated - had the potential to damage BRIT’s reputation. The CEO of BRIT decided to commence an investigation into the employee’s conduct. BRIT informed the employee that an investigation was to be undertaken into the email as it contained unsubstantiated allegations that were viewed very seriously by BRIT and also considered to be in contravention of the New South Wales Public Service Code. The employee was suspended from duty for the period of the investigation in order to give him the opportunity to respond to BRIT’s request that he show cause as to why he should not be disciplined for his conduct in forwarding the unsubstantiated email, not reporting allegations of misconduct and failing to provide particulars of the allegations when requested.
The employee alleged that his suspension from duties was adverse action. The reasons for which he alleged BRIT had taken the adverse action included:
Reasons for decision
The central issue in the case was whether a connection existed between the employee’s union membership and the prejudicial action about which he complained.
In order to establish that there had been a breach of the adverse action provisions, the conduct subject to the complaint must be found to have occurred for the particular reason alleged. However, the reverse onus of the general protections provisions meant that BRIT had the task of satisfying the Court, once the application was made, that the employee’s suspension was not because of a prohibited reason. The CEO of BRIT expressly denied that the employee’s union membership or status played any role in her decision to suspend him from duties nor was it with the intent to punish or discipline him. Her decision was to provide him with the opportunity to respond to BRIT’s concerns, namely that:
no complaint was first raised with any members of the management team
the language in the email was bound to cause damage to BRIT’s reputation and undermine the confidence of staff in the audit process, and
the employee’s responsibility as a member of the unit overseeing the audit process.
Additionally, the CEO of BRIT was concerned that not suspending the employee could result in him doing more damage to BRIT’s reputation by making further unsubstantiated allegations during the audit process.
The Court dismissed the application. The Court found that the disciplinary action was not taken because the employee was an officer of the AEU engaging in industrial activity or exercising a workplace right.
In reaching the decision not to accept the employee’s case the Court commented that the legislation did not prevent an employer taking prejudicial action against an employee who was a union member. Although, such action could not be taken against an employee on the basis of their union membership.
This case illustrates that misconduct investigations, with the potential to result in disciplinary action of an employee, will not constitute adverse action where that action is taken for a legitimate purpose and is not prohibited by the general protection provisions. While each claim of adverse action will turn on the facts of the individual case it is important to recognise that the reason for the action will be the determinative factor. Employers can manage their obligations under these general protection provisions by providing clearly documented reasons for all decisions and keeping in mind the potential for adverse action applications.