Special Leave Granted to Appeal Barclay Decision

Fri, 2 Sep 2011

In a welcome development for employers, the issue of an employer's "unconscious" reasons for taking alleged unlawful adverse action (ie. because the person is a union delegate, OHS representative or even just because someone made a workplace complaint) will now go on appeal to the High Court.

In the Barclay case earlier this year, the Full Federal Court found (2-1) that Bendigo TAFE's "real" reason for disciplining an employee was because he was a union delegate - and one of the controversial outcomes of the case was that the Federal Court held that notwithstanding the decision-maker's subjectively legitimate reasons for disciplining the employee, it was her "unconscious" reasons that caused her to act unlawfully. The serious implication of this decision (as argued by Bendigo TAFE this morning), is that such a finding makes it impossible for Bendigo TAFE (or any employer for that matter) to ever defend such a claim whenever it seeks to discipline a union delegate, OHS representative or other protected person (because even if you are acting for other reasons, based on your undeniable knowledge of the person's status and actions as a union delegate then a Court can still find that your "real" reason for acting was something else!)

In a packed Court room this morning, the High Court of Australia made up of Justices Hayne, Gummow and Bell took little time in granting special leave, and the matter will now be stood over for a date to be determined on when the hearing will occur.

This is the first Fair Work Act case to go to the High Court and an enormously significant case for blue and white collar employers alike, as well as for the industrial/employment landscape generally in everything from executive litigation through to industrial disputes and workplace discrimination. This is the real "action of choice" at the moment so definitely watch this space!