FWA: “Adverse Action” – objective test of “real reason”

Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14

I refer to my earlier posting.

A central finding by the majority of Gray and Bromberg JJ in allowing the appeal in relation to “adverse action” was the nature of characterisation of the reason why the action or threatened action was taken. Their honours rejected the approach of considering the subjective mental reason proffered, whilst it may be relevant and genuinely held, it was necessary to determine the “real reason” by consideration of the objective connection to the action or threatened action. The reason must be an operative or immediate reason and need not be the sole or dominant reason. On this basis their honours concluded it was impossible to “divorce” the objective connection that the offending email was sent by Mr Barclay in his capacity as a union official and hence protected.

Gray and Bromberg JJ


In consolidating the provisions and adopting a generic approach for s 346, the draftsperson had to choose between the two competing prior approaches. The more modern style of using the conjunction “because” instead of “for the reason that” was adopted. The choice was stylistic, not substantive. The primary judge was correct to conclude that the word “because” in ss 340(1)(a) and 346 was intended to have the same meaning as “by reason of the circumstance that”. The Macquarie Dictionary gives as the primary meaning for the word “because”, when used as a conjunction, “for the reason that” and, when used as an adverb, “by reason”. The expressions “because” and “by reason of”, in the context of the relevant provisions of the Fair Work Act, are interchangeable. If that were not so, as the primary judge pointed out, the assistance provided to applicants by ss 360 and 361 would not be available.


To the extent that the AEU and Mr Barclay contended before the primary judge, and on the appeal, that the introduction of the word “because” had the effect of making irrelevant the state of mind of the person taking the adverse action, that contention must be rejected.


As Gummow, Hayne and Heydon JJ said in Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62 (2003) 217 CLR 92 at [236] of the use of “because” in a similar way to its use in s 346:

“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”.


The central question under s 346 is why was the aggrieved person treated as he or she was? If the aggrieved person was subjected to adverse action, was it “because” the aggrieved person did or did not have the attributes, or had or had not engaged or proposed to engage in the industrial activities, specified by s 346 in conjunction with s 347?


The determination of those questions involves characterisation of the reason or reasons of the person who took the adverse action. The state of mind or subjective intention of that person will be centrally relevant, but it is not decisive. What is required is a determination of what Mason J in Bowling (at 617) called the “real reason” for the conduct. 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. It is not open to the decision-maker to choose to ignore the objective connection between the decision he or she is making and the attribute or activity in question.


So much is evident from the use of the word “because”. It is also consonant with the objective and protective purposes of s 346. Further, it is consistent with the approach to construction taken in relation to provisions in anti-discrimination legislation where, in a similar context, the word “because” is utilised: see in particular Purvis at [142]-[166] per McHugh and Kirby JJ and at [234]-[236] per Gummow, Hayne and Heydon JJ; and Toben v Jones [2003] FCAFC 137 (2003) 129 FCR 515 at [31] per Carr J, [61]-[63] per Kiefel J and [151] per Allsop J.


Section 360 continues the long-standing position that, where adverse action is taken against a protected person, culpability will be established if the reasons for that conduct include a reason for conduct that is within the ambit of s 346. The reason must be an operative or immediate reason and need not be the sole or dominant reason (see the Explanatory Memorandum at para 1458). But the drawing of distinctions between proximate or immediate reasons for conduct (Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349 (2001) 112 FCR 232 at [216]), or between the cause of conduct and the reason for conduct (Greater Dandenong at [164]), is not helpful. Those distinctions fail to give sufficient attention to whether or not the reason was operative, and they also draw distinctions between a reason and a factor in a reason. As Gray J (with whom Woodward and Jenkinson JJ agreed) said in Lewis Construction Co Pty Ltd v Martin (1986) 17 IR 122 at 125:

The Act and the authorities do not distinguish between a “reason” and a “factor”; indeed, in Bowling, these terms are used interchangeably.


Further, that no distinction is to be drawn between the cause of conduct and the reason for conduct is supported by our earlier conclusion at [24] as to the meaning of “because” and the interchangeable use by the relevant provisions (ss 340, 346 and 360, 361) of cause and reason.

The causal connection


Bowling was a case where a mix of conduct by an employee who was also a shop steward was under consideration. Whether in that case the employer had been actuated to dismiss Mr Bowling by reason of his activities as an officer of the union or by reason of his activities as an employee was complicated by the fact that it was not easy to characterise the activities in question as simply those of the employee as an employee or those of the officer. That Mr Bowling was regarded by his employer as a trouble-maker may well have been a combination of both Mr Bowling’s activities as a shop steward and also as a difficult employee. The employer in that case did not discharge its onus because it failed to establish that, when it dismissed Mr Bowling, its action was dissociated or divorced from Mr Bowling’s activities as a union officer.


This case is clear and involves none of the difficulties which arose in Bowling by reason of the confluence of employee activities with the activities and status of an officer of the union. All of the relevant conduct in issue in this case involved Mr Barclay in his union capacity. None of it involved him in his capacity as an employee of BRIT. Mr Barclay’s interaction with other members of the AEU, in receiving information, maintaining the confidence of the information received, and communicating with AEU members through his email, was all done for and on behalf of the AEU. If an employer has a basis for complaint, or a legal claim arising out of such conduct, the complaint or claim is to be addressed to the union, because the source of the complaint or claim is the conduct of the union. If employers were able to punish those of its employees who are union members or officers for the conduct of their union, the protection to those persons afforded by s 364 would be entirely illusory and the purpose of the provision defeated.


If adverse action is taken by an employer in response to conduct of a union, it is impossible for that employer to dissociate or divorce from that conduct its reason for the taking of the adverse action simply by characterising the activity of the union as the activity of its employee. The primary judge failed to approach the matter on the basis that BRIT needed to establish that the real reason for the adverse action taken against Mr Barclay lay outside the ambit of s 346. His Honour did not hold that, in order to succeed, BRIT had to establish by evidence that the real reason or reasons for the conduct taken against Mr Barclay were dissociated from the circumstances that Mr Barclay was an officer of the AEU and had engaged in industrial activity. As we have stated, at [28] above, the search required by s 346 is a search for what actuated the conduct of the person who took adverse action, not for what that person thinks he or she was actuated by.


It is clear from the primary judge’s reasons for judgment at [49]-[54] that his Honour found there were two significant reasons given by Dr Harvey for taking adverse action against Mr Barclay. One was that he had sent the email of 29 January 2010 to members of the AEU employed by BRIT, without having brought to the attention of senior management the allegations that were made to him by members, or in the email. The second was that the terms of the email were such as to cause distress to members of the staff of BRIT, to bring the reputation of BRIT into question and to undermine the confidence of staff in the audit process. This second reason gave rise to Dr Harvey’s fear that Mr Barclay would make further allegations of a similar kind. This was the justification for her decision to require him to refrain from entering the premises of BRIT, and to deprive him of access to the internet through BRIT’s computer system.


It is clear that, in Dr Harvey’s own terms, both of these reasons were founded upon the sending of the email of 29 January 2010. The first reason was not merely that Mr Barclay was in possession of information that Dr Harvey thought he was bound to disclose to senior management, it was that he had disclosed that information to others without disclosing it to senior management. The second reason concerned the manner in which the disclosure of that information was expressed. As we have said, it was not for Dr Harvey to approve or disapprove the way in which Mr Barclay expressed his communications with members of the AEU employed by BRIT.


An examination of the terms of the letter Dr Harvey gave to Mr Barclay on 2 February 2010 confirms that the sending of the email, and the manner in which it was expressed, were very much part of the reasons for Dr Harvey’s action. The letter opens with a reference to the email. Within its terms, it is critical of the manner of expression of the email. Indeed, the manner of expression is the very foundation of two of the three allegations that Mr Barclay was in breach of provisions of the Code of Conduct for Victorian Public Sector Employees.


The sending of the email, and the manner in which it was expressed, were part of the exercise by Mr Barclay of his functions as an officer of the AEU. They were also at the heart of his engagement in industrial activity, as was Mr Barclay’s insistence upon retaining the confidences of the members who approached him. Accordingly, Dr Harvey’s evidence, as well as the terms of the letter, made it clear that, on behalf of BRIT, Dr Harvey took adverse action against Mr Barclay in three respects, for reasons that included the fact that he was an officer of the AEU and the fact that he had engaged in industrial activity. Mr Barclay may not have performed the industrial activity in which he was engaged as well as it could have been performed. He may well have overstated the nature of the complaints that had been made to him. Even assuming that to be so, Mr Barclay’s failure was the failure of a union officer. It was not the failure of an employee and could not have been dealt with as such. The fact that Dr Harvey may have chosen to characterise the conduct of an officer as the conduct of an employee and therefore did not regard herself as taking action because Mr Barclay was an officer, or because of any of his industrial activities, does not alter the fact that her real reasons included these factors.

79.For these reasons, the primary judge should have found that BRIT contravened
s 346(a) and (b) of the Fair Work Act. It is necessary to allow the appeal.

Brisbane Barrister – David Cormack

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