Recently, the Federal Court handed down the first ever ruling on an adverse action claim in Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [25 March 2010].
In the case, the Court rejected a senior Bendigo TAFE teacher’s claim that the TAFE had unlawfully taken adverse action against him. The teacher was also the Australian Education Union’s Sub-Branch President.
Bendigo TAFE suspended the teacher on full pay for two weeks after he sent an email claiming that fellow AEU members had witnessed the production of false documents for the TAFE’s upcoming audit.
The TAFE’s chief executive decided that the email’s content could cause serious damage to Bendigo TAFE’s reputation and suspended the employee after writing to him and asking him to explain his behaviour.
The employee and his union alleged that his suspension constituted unlawful adverse action because the action was taken due to his involvement in industrial activity and his position as a union officer.
However, the Court decided that although the TAFE took adverse action against the employee, they did not take it for the unlawful reasons the employee claimed they did.
So what can you learn from this case?
Firstly, you must document the reasons behind every decision you make that affects employees in your workplace.
If you take adverse action against an employee, you must be able to prove that you took the action for a lawful, proper reason, not a prohibited one.
The key question a Court will be seeking to answer in an adverse action case is why you took the adverse action. If you can prove, via evidence and documentation, that you took the action for a lawful reason, you will go a long way towards defending a claim.
Regards,
Charles Power
Editor-in-Chief
Employment Law Practical Handbook
