FEDERAL COURT OF AUSTRALIA

Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284

Citation:		Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284

Parties:		GREGORY PAUL BARCLAY and AUSTRALIAN EDUCATION UNION v THE BOARD OF BENDIGO REGIONAL INSTITUTE OF TECHNICAL AND FURTHER EDUCATION

File number(s):		VID 77 of 2010

Judge:		TRACEY J

Date of judgment:		25 March 2010

Catchwords:		INDUSTRIAL LAW – adverse action – industrial activity – whether decision by employer to take adverse action taken for proscribed reason(s) – whether employer’s reasons for taking adverse action relevant – construction of ss 340, 346 of Fair Work Act 2009 (Cth)

Legislation:		Conciliation and Arbitration Act 1904 (Cth), s 5 Disability Discrimination Act 1992 (Cth), s 5 Fair Work Act 2009 (Cth) ss 336, 340, 341, 346, 347, 348, 351, 352, 354, 355, 360, 361 Explanatory Memorandum, Fair Work Bill 2008 (Cth) paras 1336, 1457, 1459, 1460, 1461 Industrial Relations Act 1988 (Cth), s 334 Workplace Relations Act 1996 (Cth), ss 298K, 298L, 298V

Cases cited:		Australian Municipal, Administrative, Clerical and Services Union v Ansett Australia Ltd (2000) 175 ALR 173 referred to Bowling v General Motors Pty Ltd (1975) 8 ALR 197 applied Cuevas v Freeman Motors Pty Ltd (1975) 25 FLR 67 referred to Dowling v Fairfax Media Publications Pty Ltd (2009) 182 IR 28 referred to Elliott v Kodak Australasia Pty Ltd (2001) 108 IR 23 referred to Finance Sector Union of Australia v Australia and New Zealand Banking Group Ltd (2002) 120 FCR 107 referred to General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 applied Jones v Queensland Tertiary Admissions Centre Ltd (2009) FCA 1382 distinguished Kimpton v Minister for Education (1996) 65 IR 317 distinguished Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 referred to Police Federation of Australia v Nixon (2008) 168 FCR 340 cited with approval Purvis v The State of New South Wales (2003) 217 CLR 92 considered Seymour v Saint-Gobain Abrasives Pty Ltd (2006) 161 IR 9 referred to The United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 123 IR 86 distinguished

Date of hearing:	12, 24-26 February – 4 March 2010

Date of last submissions:	4 March 2010

Place:	Melbourne

Division:	FAIR WORK DIVISION

Category:	Catchwords

Number of paragraphs:	59

Solicitor for the Applicants:	Holding Redlich

Counsel for the Applicants:	C Gunst QC & M Irving

Solicitor for the Respondent:	Lander & Rogers

Counsel for the Respondent:	C O'Grady & A McNab

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 77 of 2010

BETWEEN:

GREGORY PAUL BARCLAY

First Applicant

AUSTRALIAN EDUCATION UNION

Second Applicant

AND:

THE BOARD OF BENDIGO REGIONAL INSTITUTE OF TECHNICAL AND FURTHER EDUCATION

Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	25 MARCH 2010
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 77 of 2010

BETWEEN:

GREGORY PAUL BARCLAY

First Applicant

AUSTRALIAN EDUCATION UNION

Second Applicant

AND:

THE BOARD OF BENDIGO REGIONAL INSTITUTE OF TECHNICAL AND FURTHER EDUCATION

Respondent

JUDGE:	TRACEY J
DATE:	25 MARCH 2010
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 Mr Gregory Barclay is a senior teacher and is the Sub-Branch President of the Australian Education Union (“the AEU”) at the Bendigo Regional Institute of TAFE (“BRIT”). In his union capacity he forwarded an e-mail to members of the AEU employed by BRIT in which he said that he was aware of reports of serious misconduct by unnamed individuals in BRIT. He did not, before sending the e-mail, advise any of his line managers of the details of this serious misconduct, nor has he since done so. The e-mail was passed on to senior managers. The Chief Executive Officer, Dr Louise Harvey, called upon Mr Barclay to show cause why he should not be disciplined for failing to report the misconduct, to which he had referred in his e-mail, to senior managers. He was suspended on full pay, had his internet access suspended and was required not to attend BRIT premises during the period of the suspension (“the adverse action”).

2 Mr Barclay and the AEU alleged that, in taking these steps, BRIT contravened various provisions of the Fair Work Act 2009 (Cth) (“the Act”) which are intended to protect the right of union officials and members to associate and pursue common goals. Both applicants had common representation and made common cause. It will be convenient hereafter to refer only to Mr Barclay on the understanding that, unless the context otherwise dictates, such a reference also comprehends the AEU.

3 The issue in this case is whether the prejudicial action to which Mr Barclay has been subjected was taken by BRIT, acting through Dr Harvey, for one or more of the reasons proscribed by the Act. BRIT carries the burden of proving that it did not act against Mr Barclay for a proscribed reason: see s 361(1) of the Act.

THE FACTS

4 On 29 January 2010 Mr Barclay forwarded an e-mail to all members of the AEU employed by BRIT. It read:

“From: Greg Barclay [mailto:gbarclay@britafe.vic.edu.au]

Sent: Friday, 29 January 2010 10:00 AM

Subject: AEU – A note of caution

Hi all,

The flurry of activity across the Institute to prepare for the upcoming reaccreditation audit is getting to the pointy end with the material having been sent off for the auditors to look through prior to the visit in February.

It has been reported by several members that they have witnessed or been asked to be part of producing false and fraudulent documents for the audit.

It is stating the obvious but, DO NOT AGREE TO BE PART OF ANY ATTEMPT TO CREATE FALSE/FRADULENT [sic] DOCUMENTATION OR PARTICIPATE IN THESE TYPES OF ACTIVITIES. If you have felt pressured to participate in this kind of activity please (as have several members to date) contact the AEU and seek their support and advice.

Greg Barclay

President

BRIT AEU Sub-Branch”

5 Beneath the signature block on the e-mail contact details of other Sub-branch Executive members were set out. Further down there were two notes which formed part of what was described in argument as a “footer”. The notes read:

“Note: This message is for the named person’s use only. It may contain confidential, proprietary or legally privileged information. No confidentiality or privilege is waived or lost by any mistransmission. If you receive this message in error, please immediately delete it and all copies of it from your system, destroy any hard copies of it and notify the sender. You must not, directly or indirectly, use, disclose, distribute, print, or copy any part of this message if you are not the intended recipient. Any views expressed in this message are those of the individual sender, except where the message states otherwise and the sender is authorized to state them to be the views of any such entity. …

Note: This message is for the named person’s use only. It may contain confidential, proprietary or legally privileged information. No confidentiality or privilege is waived or lost by any mistransmission. If you receive this message in error, please immediately delete it and all copies of it from your system, destroy any hard copies of it and notify the sender. You must not, directly or indirectly, use, disclose, distribute, print, or copy any part of this message if you are not the intended recipient. Australian Education Union – Victorian Branch and any of its subsidiaries each reserve the right to monitor all e-mail communications through its networks. Any views expressed in this message are those of the individual sender, except where the message states otherwise and the sender is authorized to state them to be the views of any such entity.”

6 The audit to which Mr Barclay’s e-mail referred was to be conducted by the Victorian Registration and Qualifications Authority (“the VRQA”) on 16-17 February 2010. The documentation to which he referred was to be provided to the auditors in the course of the audit. The audit was conducted to establish whether or not BRIT had complied with the various requirements on which its continuing accreditation and funding depended.

7 Some of the recipients of the e-mail forwarded copies to senior managers in BRIT. This occurred on 29 January 2010. On 1 February 2010 Dr Harvey was advised of the existence of the e-mail and, late in that day, a copy of it was provided to her by one of the managers, Mr Jamie Eckett. In addition to Mr Barclay’s e-mail, Mr Eckett provided Dr Harvey with copies of e-mailed comments made by other managers who had seen the original e-mail. These comments were to the effect that the e-mail had the potential to cause serious damage to the reputation of BRIT. Mr Eckett told Dr Harvey that he had discussed the contents of the e-mail with Mr Barclay earlier that day. He said that Mr Barclay had declined to provide him (Mr Eckett) with the names of his informants because they were union members and did not wish the fact of their membership to become known to management. According to Dr Harvey Mr Eckett also told her that Mr Barclay declined to provide details of the allegations. Mr Barclay challenged Dr Harvey’s evidence on this point, suggesting that she had made the claims as an afterthought in order “to boost her case”.

8 Dr Harvey considered the e-mail and the comments overnight. She formed the view that Mr Barclay had contravened certain clauses of the Code of Conduct for Victorian Public Sector Employees (“the Code of Conduct”). She determined to institute disciplinary proceedings against Mr Barclay. On the following day she arranged a meeting which was attended by Mr Barclay and an AEU representative. At that meeting Dr Harvey gave Mr Barclay a letter which recorded the action which she proposed to take to deal with the e-mail and its contents. The letter read:

“Dear Greg

Re: Possible Serious Misconduct

I refer to an email sent by you to many Bendigo TAFE staff on Friday, 29^th January 2010 in which you alleged that serious inappropriate behaviour has occurred in that several staff members have been “asked to be part of producing false and fraudulent documents for the audit” for Bendigo TAFE’s re-accreditation.

Your allegation raises the possibility that improper conduct has occurred which will require a full and thorough independent investigation. I am in the process of arranging for this to occur. You will be required to be interviewed by the investigator appointed. I will supply more information to you about that in the near future.

However, the purpose of this letter is to ask that you show cause why you should not be subject to disciplinary action for serious misconduct in your role as Team Leader – Teaching Excellence. It appears to me that such disciplinary action may be warranted because of:

· the manner in which you have raised the allegation, via a broadly distributed email;

· your actions in not reporting the instances of alleged improper conduct directly to your manager or me to enable us to take appropriate action; and

· your refusal or failure to provide particulars of the allegations when asked to do so by your manager.

In my preliminary view, this conduct is inconsistent with the behaviour expected of a public sector employee, a BRIT employee and a Team Leader in the Teaching, Learning & Quality Unit of this organisation. Additionally, I am of the view that because your accusation is vague and general, it doesn’t demonstrate proper respect for your fellow employees and places the individuals concerned in the re-accreditation process under the shadow of suspicion with no right of reply or defence.

I believe you have breached Clause 3.6, 3.9 and 6.1 of the Code of Conduct for Victorian Public Sector Employees. Clause 3.6 refers to public sector employees reporting to an appropriate authority any unethical behaviour. You did not report to your supervisor your knowledge of possible unethical behaviour and as yet have not provided proof of your allegation to your manager when asked to do so. Clause 3.9 refers to public sector employees behaving in a manner that does not bring themselves or the public sector into disrepute. The manner in which you have disseminated your allegations (whether or not they are well-founded) clearly threatens the reputation and probity of Bendigo TAFE. Finally, Clause 6.1 refers to public sector employees being fair, objective and courteous in their dealings with other public sector employees. By making generalised allegations, that could apply to anyone in the Institute involved in the re-accreditation process, you have cast a slur on your colleagues against which they cannot defend themselves.

In line with Clause 3 of the BRIT Staff Discipline procedure, it is my decision to suspend you from duty on full pay until Friday, 19^th February 2010. This period of time will provide you with the opportunity to formally respond to the charge of serious misconduct as outlined above. You should provide your response to the charges by no later than 12 noon on 17 February 2010. Until 19 February you are not to attend any of the Bendigo TAFE campuses and your electronic access account will be suspended.

Yours sincerely

Dr Louise Harvey

Chief Executive Officer”

9 In the course of an interlocutory hearing on 12 February 2010 BRIT agreed to lift the suspension on full pay, the suspension of Mr Barclay’s internet access and the requirement that he not attend BRIT premises.

THE ALLEGED CONTRAVENTIONS

10 Mr Barclay alleges that BRIT took the adverse action against him because:

· he was an officer of the AEU: see s 346(a);

· he engaged in industrial activity, namely representing or advancing the views, claims or interests of the AEU: see ss 346(b) and 347(b)(v);

· he engaged in industrial activity, namely encouraging or participating in a lawful activity organised or promoted by the AEU: see ss 346(b) and 347(b)(iii);

· he exercised a workplace right, namely the role or responsibility granted by Clause 10 of the Victorian TAFE Teaching Staff Multi-Business Agreement 2009 (“the Agreement”): see ss 340(1)(a)(ii) and 341(1)(a); and

· he had exercised a workplace right, namely the ability to participate in a process or proceeding under a Workplace Instrument, being a dispute settlement procedure under Clause 10 of the Agreement: see ss 340(1)(a)(ii), 341(1)(b) and 341(2)(j).

THE LEGISLATION

11 The provisions on which Mr Barclay relies appear in Part 3-1 of the Act. The objects of the Part include the protection of workplace rights and of freedom of association: see s 336.

12 Section 340 relevantly provides:

“340(1) A person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right …”

13 Section 341 relevantly defines a “workplace right” as follows:

“341(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(2) Each of the following is a process or proceedings under a workplace law or workplace instrument;

(a) …

(b) …

(d) …

(e) …

(f) …

(g) …

(h) …

(i) …

(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;

(k) …”

14 Sections 346 and 347 are two of the provisions directed to the protection of the right of freedom of association. Relevantly, they provide:

“346 A person must not take adverse action against another person because the other person:

(a) is or is not, or was or was not, an officer or member of an industrial association; or

(b) engages, or has at any time engaged or proposed to engage, in an industrial activity within the meaning of paragraph 347(a) or (b); or

347 A person engages in industrial activity if the person:

(a) becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or

(b) does, or does not:

(i) …

(ii) organise or promote a lawful activity for, or on behalf of, an industrial association; or

(iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association; or

(iv) …; or

(v) represent or advance the views, claims or interests of an industrial association; or

(vi) …; or

(vii) …

…”

15 Sections 360 and 361 contain provisions which render it easier than otherwise would be the case for an applicant to establish a contravention of the operative provisions of Part 3-1. They provide:

“360 For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

361(1) If:

(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent;, and

(b) taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2) ….”

CONSTRUCTION ISSUES

16 Similar provisions to those which have just been set out appeared in earlier legislation. There are, however, differences in the language employed by the draftsman, some of which, Mr Barclay contends, are significant. He also submits that, because of the differences to which he points, earlier decisions of the Court and its predecessor, the Australian Industrial Court, may not be helpful in construing parts of these provisions.

17 Mr Barclay has raised some novel construction points which will require attention before the parties’ submissions on the evidence are considered.

18 Protective provisions first appeared in the Conciliation and Arbitration Act 1904 (Cth) (“the C&A Act”) and were later incorporated in the Industrial Relations Act 1988 (Cth) (“the IR Act”) and the Workplace Relations Act 1996 (Cth) (WR Act”). The provisions in the earlier legislation which afforded equivalent protection to that offered by ss 340 and 346 of the Act rendered conduct offensive if it was engaged in for a proscribed reason or reasons.

19 It has never been the case that an employer was prevented, by federal industrial legislation, from taking prejudicial action against an employee who happened to be a union member or a union official: see for example Cuevas v Freeman Motors Pty Ltd (1975) 25 FLR 67 at 78-9. An employer could not, however, act to the detriment of an employee “by reason of” or “because” of the employee’s union membership or associated activities. Over the past century the legislature has expanded progressively the number of prejudicial acts which are denied to an employer and the number of proscribed reasons which might actuate the taking of such prejudicial action. The central issue in this case is concerned with the provisions of the Act which determine whether a causal nexus exists between an employee’s union membership and activities and any prejudicial action about which complaint is made.

20 The legislative history is more fully outlined in the judgment of Marshall J in Elliott v Kodak Australasia Pty Ltd (2001) 108 IR 23 at 27-30. The following summary is sufficient for present purposes. Section 9(1) of the original C&A Act made it a criminal offence for an employer to dismiss an employee “by reason merely of the fact that the employee [was] an officer or member of an organisation or [was] entitled to the benefit of an industrial agreement or award.” Section 9(3) provided that, if an employer was prosecuted for a contravention of the section, “it shall lie upon the employer to show that any employee, proved to have been dismissed while an officer or member of an organisation … was dismissed for some reason other than those mentioned in this section.” Section 9 was varied on a number of occasions to expand the range of prejudicial action which an employer was forbidden to take against an employee “by reason of the circumstance that” the employee was a union member or engaged in lawful industrial action. In 1947 s 9 was renumbered as s 5 and the range of protected actions was further expanded. The phrase “by reason of the circumstances that” was retained. In 1988 s 5 of the C&A Act was substantially reproduced as s 334 of the IR Act. For the first time “because” was substituted for “by reason of” in the substantive provision. The related reverse onus provision, however, continued to focus on the defendant’s reason or reasons for acting. The section prohibited the taking of action against an employee “because” the employee was a union member or had engaged in certain activities. It continued to be an offence provision. Section 334(6) relieved the prosecutor of the need to prove the defendant’s reason for the action charged and made it a defence to the charge that “the defendant proves that the action was not motivated (whether in whole or part) by the reason…specified in the charge.”

21 After 1996 the WR Act continued to protect employees but did so through a civil penalty regime. Section 334 of the IR Act was replaced by ss 298K and 298L. Section 298K provided that an employer could not “for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to” take prejudicial action against an employee. Section 298L provided that prejudicial conduct of the kind covered by s 298K was to be taken to be “for a prohibited reason if it [was] carried out because the employee … concerned” was a union member or official, entitled to the benefit of an industrial instrument or had engaged in certain industrial activities (emphasis added). Section 298V contained a reverse onus provision in similar terms to the one appearing in s 361(1) of the present Act.

22 In 2006 ss 298K and 298L were renumbered as ss 792 and 793. Section 298V was renumbered as s 809 and amended such that it was in almost identical terms to the present s 361.

23 Mr Barclay contended that the inclusion of the word “because” in both ss 340 and 346 in preference to the phrase “by reason of” which had appeared in some of the earlier legislation had effected a significant change. He submitted that, in determining whether or not prejudicial action had been taken “because” of the status or activities of the victim, the actor’s subjective reason for taking the prejudicial action was wholly irrelevant and was not to be taken into account. The test was said to be purely objective. In the alternative, he contended that BRIT had not established, on the balance of probabilities, that it had not acted for one or more of the reasons alleged by him.

24 The primary contention must be rejected. It is inconsistent with the legislative history, relevant principles of statutory construction and authority.

25 Under s 5 of the C&A Act the court was required to determine whether the “real reason” for the prejudicial action against an employee was or included a proscribed reason: see General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605. To this end the court had regard to the evidence called on behalf of the employer as to what motivated or actuated its decision to take prejudicial action against the employee. If the employer was a corporation that evidence would normally be given by the person or persons who made or authorised the decision. It was necessary for the court to assess the credibility of their evidence having regard to all of the surrounding circumstances. If they were believed the onus was satisfied. If they were not and the other statutory requirements were met, the employee succeeded. If the actual decision makers were not called a finding that an employer had not satisfied the onus would more easily be made: see General Motors Holden at 612.

26 It might also be observed that, in giving reasons for their decisions, courts dealing with cases brought under s 5 of the C&A Act, often used the phrase “by reason of” and the word “because” interchangeably: see, for example, Bowling at 217-8; Cuevas at 78-9.

27 The question raised by Mr Barclay’s primary construction point is whether the substitution, in successive Acts, of the causal expression “because”, has had the effect of rendering irrelevant the reasons given by an employer for taking action against an employee.

28 In all of the cases to which I was referred which had been decided under the equivalent provisions of the IR Act and the WR Act and others which I have examined, the court proceeded on the basis that evidence of the employer’s subjective reasons for taking the impugned action was relevant in deciding whether the employer had taken the action because of the existence of one or more of the circumstances in which such action was impermissible. See, for example, Bowling v General Motors Holden Pty Ltd (1975) 8 ALR 197 at 205-6 (s 5); Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 at 69, 83-5 (ss 298K-298L); Australian Municipal, Administrative, Clerical and Services Union v Ansett Australia Ltd (2000) 175 ALR 173 at 187-192 (ss 298K-298L); Elliott v Kodak Australasia Pty Ltd (2001) 108 IR 23 at 30-1(ss 298K-298L); Finance Sector Union of Australia v Australia and New Zealand Banking Group Ltd (2002) 120 FCR 107 at 143-4 (ss 298K-298L); The United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 123 IR 86 at 113-5 (ss 298K-298L); Seymour v Saint-Gobain Abrasives Pty Ltd (2006) 161 IR 9 (“Seymour”) at 13-14 (ss 792-793); Dowling v Fairfax Media Publications Pty Ltd (2009) 182 IR 28 at [40] (ss 792-793). It is to be noted that the approach remained the same after the criminal offences were replaced by a civil penalty regime. Counsel for Mr Barclay did not cite any authority which supported the contrary proposition which they urged on the court.

29 Sections 340(1)(a) and 346(a) must be construed having regard to the legislative context in which they appear. The relevant provisions of Part 3-1 of the Act are to be found in Divisions 1, 3, 4, 5 and 7. In addition to ss 340(1)(a) and 346(a), these Divisions contain other proscriptions which are intended to further the objects of the Part. They include those which are to be found in ss 340(2), 351(1), 352 and 354(1). In each of these cases it is provided that a person must not take particular action “because” certain prescribed circumstances exist. Nowhere in these divisions is the “by reason of” formula employed. This is significant because ss 360 and 361(1) contemplate that, in order to establish contraventions of the protective provisions of the Part, it is necessary to establish that relevant action has been taken “for a particular reason”. Unless “because” bears the same meaning as “for a particular reason”, the assistance provided to applicants by ss 360 and 361 would not be available.

30 Another group of protective provisions in these Parts, such as ss 343, 348 and 355, prohibit various forms of conduct if taken “with intent to coerce”. If such an intention is alleged, s 361 establishes a rebuttable presumption that the respondent acted with the requisite intention to coerce.

31 The Explanatory Memorandum for the Fair Work Bill records that the protective provisions of Part 3-1 “are intended to rationalise, but not diminish, existing protections.”: see para 1336. In dealing with the clauses that became ss 360 and 361 of the Act the Explanatory Memorandum said that:

1457. Clause 360 deals with the extent to which a person’s action must be motivated by a particular reason to establish a contravention of Part 3-1

...

1459. Clause 361 reverses the onus of proof applicable to civil proceedings for a contravention of Part 3-1. It is intended to broadly cover section 809 of the WR Act.

1460. Generally a civil action places the onus on the complainant to establish on the balance of probabilities that the action complained of was carried out for a particular reason or with a particular intent.

1461. However, subclause 361(1) provides that once a complainant has alleged that a person’s actual or threatened action is motivated by a reason or intent that would contravene the relevant provision(s) of Part 3-1, that person has to establish, on the balance of probabilities, that the conduct was not carried out unlawfully. This has been a long-standing feature of the freedom of association and unlawful termination protections and recognises that, in the absence of such a clause, it would often be extremely difficult, if not impossible, for a complainant to establish that a person acted for an unlawful reason.” (Emphasis added).

32 These passages make it tolerably clear that the legislature intended that the reverse onus would operate when one element which is needed to establish a contravention is that the actor had been motivated by a particular reason (“because”) or by a particular intention (“the intent to coerce”).

33 In Purvis v The State of New South Wales (2003) 217 CLR 92, the High Court dealt with the construction of s 5(1) of the Disability Discrimination Act 1992 (Cth) which provided that “a person discriminates against another person on the ground of a disability of the aggrieved person if, because of the disability” the actor did certain things. In their joint judgment Gummow, Hayne and Heydon JJ made certain observations about the issue of whether the appellant had been treated less favourably “because of” his disability. Their Honours said (at 163) that:

…The arguments about this aspect of s 5(1) sought to draw distinctions between the motive of the discriminator, the purpose of the conduct and the effect of the conduct, and between objective and subjective criteria of operation. Attention was directed to the drafter’s use of the expression “by reason of” in the equivalent provisions of the Sex Discrimination Act…rather than the expression “because of” used in s 5(1) and other provisions of the Act…Reference was made to s 10 of the Act and its provision that if an act is done for two or more reasons and one of those is the disability of a person “whether or not it is the dominant or a substantial reason for doing the act” then for the purposes of the Act “the act is taken to be done for that reason”.

…For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed “because of” disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it “because of”, “by reason of”, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression “because of”. (Emphasis in original).

34 The task of the court, in a proceeding such as the present is, then, to determine why the employer took the adverse action against the employee. Was it for a prohibited reason or reasons which included that reason? In answering this question evidence from the decision-maker which explains why the adverse action was taken will be relevant. If it supports the view that the reason was innocent and that evidence is accepted the employer will have a good defence. If the evidence is not accepted the employer will have failed to displace the presumption that the adverse action was taken for a proscribed reason.

35 If an employer, who is alleged to have contravened one of the provisions of Part 3-1 in which the word “because” is to be found, adduces evidence which persuades the court that it acted solely for a reason other than one or more of the impermissible reasons identified in a particular protective provision, it will have made good its defence. Because of the reverse onus provision the employer will normally need to call evidence from the decision-maker to explain what actuated him or her to act to the employee’s detriment. As Buchanan J said in Seymour (at 14), the employer will usually have to provide “sworn evidence denying any [proscribed] reason…and, in most cases, an explanation of the real reason for [the adverse action] consistent with the absence of [proscribed reasons] is, in a practical sense, also necessary”. That evidence can be tested in the light of established facts. The credibility of the decision-maker will be assessed by the court.

36 Mr Barclay’s alternative argument accepted that this was the correct approach and submitted that BRIT had failed, on the balance of probabilities, to establish that it had acted for the reasons given by Dr Harvey and not for any impermissible reason.

37 Mr Barclay alleges that BRIT took adverse action against him because he was an officer of the AEU and because he had engaged in the various activities identified above at [10]. In those circumstances I must determine whether BRIT has satisfied me, on the balance of probabilities, that Mr Barclay’s status and activities (or any one of them) was not or were not a reason for Dr Harvey’s decision.

THE APPLICANTS’ CASE

38 Mr Barclay’s case was founded on the fact that he had distributed the e-mail only to union members and had done so in his capacity as the Sub-Branch President of the AEU. The allegations referred to in the e-mail had come to him from four members of the AEU employed at the BRIT. They had not wished him to pass the allegations on to management and had not wished their identities to be disclosed. Mr Barclay had not intended that his e-mail should be seen by senior managers. He pointed to the terms of the “footer” to the e-mail and submitted that its terms required Dr Harvey and other managers who received the e-mail to destroy it and take no action on it.

39 Mr Barclay said that his role as a union official at the workplace involved, amongst other things, advising members on workplace issues, representing the views of members to management, ascertaining the concerns of members and communicating with members about issues of interest or concern to them. His evidence in this regard was supported by Mr Brian Henderson, the Secretary of the Victorian Branch of the union. Their evidence was based on custom, practice and experience. The AEU Rules say very little about the duties of a Sub-Branch President. Certain industrial agreements which were referred to did no more than recognise the right of union officers at the workplace to represent the interests of members in dealing with management. BRIT did not seek to gainsay the applicants’ evidence relating to Mr Barclay’s role as Sub-Branch President.

40 Mr Barclay also relied on certain provisions of the Agreement relating to the resolution of disputes at the workplace. Clauses 10.1 and 10.2 of the Agreement read:

“10.1 A dispute or grievance arises where an Employee on the one hand or the Employer on the other are aggrieved by a decision or action, or a failure to make a decision or act in relation to matters that arise out of, or are reasonable incidental to, matters covered by this Agreement.

10.2 The Employee has the right to seek advice from and be represented by the industrial organisation entitled to represent his or her interests at all stages of this procedure.”

41 The Agreement provides for a staged process under which the employee seeks first to resolve any dispute with his or her immediate supervisor. If not resolved at this level the dispute is to be referred on to a dispute settlement committee and, if need be, the Australian Industrial Relations Commission or, presumably, its successor. Mr Barclay asserted that employees had the right to seek advice from him in relation to any grievance they had about the completion of audit documentation.

42 It was common ground that Mr Barclay, as Sub-Branch President of the AEU, had the right (and probably the duty) to discuss workplace issues of concern to members with those members and to advise them about how the issues should be resolved. He was also bound to respect confidences. He had this right, independently of any provision in the agreement, including Clause 10. It may be doubted that Clause 10 had any relevant application given that, while the right to be represented is a right that applies at all stages of the grievance procedure, no attempt had been made by any employee to invoke the procedure.

43 The evidence did not disclose precisely what each of the four members told Mr Barclay about the preparation of the audit documentation. When asked about these discussions during cross-examination Mr Barclay said that his informants had told him that they had become aware that incorrect information had been included in documents being prepared for audit purposes. None of his informants had told him that he or she considered that the person responsible for making the entries had deliberately inserted details which he or she knew to be incorrect in an attempt to mislead the auditors. Despite this he chose, in his e-mail, to suggest that the members had “witnessed or been asked to be part of producing false and fraudulent documents for the audit.” This would not appear to be an accurate characterisation of the information which he received. Whether that be so or not is not an issue that falls to be determined in this proceeding. It is sufficient to observe that Mr Barclay made a most serious allegation that members had reported to him that mis-conduct, which could very well amount to a criminal offence, had occurred.

44 These allegations came to the attention of Dr Harvey because certain recipients of the e-mail were sufficiently concerned to refer them to their managers who, in turn, advised her about the contents of the e-mail. She asked to be provided with a copy and was disturbed by its contents.

45 Once seized of the allegations Dr Harvey was entitled (if not bound) to investigate the allegations. She was not, in my view, precluded from doing so by the terms of the “footer” to the e-mail. The e-mail was addressed to “all” and not to a named person. The restrictions on use appear to be directed to a person, other than a named person, who has received the e-mail as a result of a “mistransmission”. Such a person is told that he or she must not “use, disclose, distribute, print or copy any part of the message”. Dr Harvey did not receive the e-mail as a result of a mistransmission but rather as the result of a decision by one or more of the recipients to pass copies on to management. It is not necessary, in this proceeding, for me to determine whether or not Dr Harvey was required, as Mr Barclay contends, to destroy the copy of the e-mail which she received and ignore its contents. The fact is she did not. Her failure to act in the way Mr Barclay asserts she should have acted throws no light on the reasons why Dr Harvey determined to take the adverse action against Mr Barclay.

THE RESPONDENT’S CASE

46 BRIT accepted that it had taken adverse action against Mr Barclay. That adverse action was constituted by his suspension from duty, the suspension of his internet access and the imposition of the requirement that he not attend BRIT premises. BRIT did, however, submit that the decision to require him to show cause why disciplinary action should not be taken against him was not adverse action within the meaning of the Act.

47 Given the concessions, properly made by BRIT in relation to the taking of adverse action, it will only be necessary to determine whether or not the institution of the disciplinary proceedings also constituted “adverse action”, if it later becomes necessary to consider the award of compensation to Mr Barclay. For present purposes it is sufficient to note that three members of the Court, in the course of interlocutory judgments, have held that the commencement of disciplinary proceedings arguably amounts to the taking of adverse action: see Kimpton v Minister for Education of Victoria (1996) 65 IR 317 at 319 (per North J); United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 123 IR 86 at 110-111 (per Goldberg J); Jones v Queensland Tertiary Admissions Centre Ltd (2009) FCA 1382 at [26] – [27] (per Collier J). On the other hand, in another interlocutory judgement, Ryan J held, in Police Federation of Australia v Nixon (2008) 168 FCR 340 at 355-6, that the resumption of a disciplinary investigation into allegations against a police officer did not amount to an alteration of that officer’s position because “alteration” required a substantive change in, or reduction of, the advantages enjoyed by the employee in that capacity.

48 His Honour said, at 355-6, that:

I consider, with respect, that amenability to a disciplinary charge brought in good faith and on a proper prima facie evidentiary basis is a normal incident of employment and does not in itself, before the laying of the charge, constitute “an adverse affection of, or deterioration in, the advantages enjoyed by the employee” in the sense used by the High Court in the passage from Patrick Stevedores… Of course, it is otherwise where the charge is made out and some deleterious consequence is visited on the employee…Until the charge has been proved, the disadvantage to the employee…remains merely “potential”.”

As these decisions suggest, the question of whether the institution of an enquiry, the issuing of a show cause notice or the laying of disciplinary charges constitute adverse action will depend on the particular circumstances of a given case. The variables may include the rules under which the action is taken by the employer, the practical impact of the taking of the administrative action on the employee and the bona fides of the employer in instigating the administrative processes. The greater the impact on the employee the more likely it is that the employer’s action will be treated as “adverse action” for the purposes of the Act.

49 BRIT denied that it had taken the adverse action against Mr Barclay for any impermissible reason. Dr Harvey deposed that, having considered the contents of Mr Barclay’s e-mail, she had concerns that:

“(a) The allegations of fraudulent conduct were made without any complaint or report of conduct of that kind being raised with me or any other member of senior management;

(b) The language used in the e-mail was bound to cause distress to members of staff, bring the reputation of the [BRIT] into question and undermine staff confidence in the Audit process; and

50 Dr Harvey said that she issued the show cause notice to provide Mr Barclay with an opportunity to respond to the allegations and not with the intention to discipline or punish him.

51 She had determined to institute an investigation into Mr Barclay’s actions because it appeared to her that he had failed to bring serious allegations to the attention of senior managers and had “proceeded to cast aspersions and innuendo upon his colleagues by way of a widely circulated e-mail.” She considered that this conduct provided “prima facie evidence of a breach of the code of conduct and his obligations as a [BRIT] employee.”

52 Dr Harvey said that she had decided to suspend Mr Barclay “because I was of the view that the allegations against him were serious and I was concerned if Mr Barclay was not suspended he might cause further damage to the reputation of the [BRIT] and of the staff in the [BRIT].

53 Dr Harvey denied that any adverse action was taken because of Mr Barclay’s membership of the AEU or because of any role he held within that organisation or because he had engaged in industrial activity. Dr Harvey also denied that she had acted because Mr Barclay had exercised any rights under Clause 10 of the agreement. She said that it had not occurred to her that Mr Barclay’s conduct gave rise to any issues under the agreement and that, in any event, the agreement did not confer on Mr Barclay the right which he asserted.

54 Dr Harvey was a somewhat tentative and nervous witness, especially at the commencement of her cross-examination. At times she was unnecessarily guarded and defensive. At one point, for example, she was disposed to deny that the exhortation to members, in Mr Barclay’s e-mail, not to agree to be part of any attempt to create false or fraudulent documentation, was consistent with BRIT’s prevention of fraud policy. When, however, she was called on to explain her reasons for taking adverse action against Mr Barclay she provided convincing and credible explanations of why it was that she took the steps that she did. Dr Harvey said that she had been extremely concerned by the statement that false and fraudulent documentation had been prepared for the purposes of the audit. She wished to establish whether or not this had occurred and immediately instituted an inquiry to establish whether there was any foundation for the allegation. She adhered to her explanation (see above at [49]-[50]) for calling on Mr Barclay to show cause why he should not be disciplined for circulating the e-mail. She said that she had determined to exclude him from BRIT campuses and suspend his e-mail access because she did not want Mr Barclay on the premises while the auditors were there and because she did not want any other “loose allegations” made inappropriately during the audit to the detriment of BRIT. She maintained her denials of having acted against Mr Barclay for any reason associated with his union membership, office or activities. She had not turned her mind to the possible relevance of Clause 10 of the Agreement. I accept her evidence. I am satisfied that she did not act for any proscribed reason. Rather, she acted for the reasons which she gave.

55 In making this finding I am not to be understood as endorsing or criticising any or all of the action which she took. Nor is it appropriate that I express any views on the issues in dispute in the disciplinary proceeding which Dr Harvey has instituted. The decision to require Mr Barclay to show cause was made bona fide. The outcome of the disciplinary proceeding will be for the enquiry officer to determine having considered the evidence and the submissions of the parties.

RELIEF

56 One of the remedies sought by Mr Barclay was an award of compensation under s 545 of the Act. Lest there be a successful challenge to my principal finding I should add that, in my view, Mr Barclay has failed to make out a case for monetary compensation even if BRIT took the adverse action for a proscribed reason or reasons.

57 Section 545(2) of the Act empowers the court to award compensation for loss that a person has suffered because of a contravention of a civil remedy provision such as ss 340 and 346 of the Act. Mr Barclay has failed to establish that he has suffered any loss as a result of the adverse action which was taken against him.

58 He suffered no loss of salary while suspended on full pay. The decisions to suspend his internet access and to refuse to allow him on BRIT premises were reversed 10 days after they were made. He alleged that his suspension from duty had become known within the BRIT and to some members of external organisations with which he was associated. Mr Barclay was unable to point to any adverse consequences for him other than suggesting that, upon his return to BRIT, the eyes of some of his colleagues were averted as they passed him. He deposed that he suffered certain medical conditions during February. Fairly and properly he acknowledged that he was subject to other stresses at relevant times arising from the ill health of other members of his family. More significantly, however, no medical evidence was called to link any illness suffered by him to the adverse action which was taken against him.

disposition

59 The application must be dismissed.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated: 25 March 2010

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