The High Court has unanimously upheld Bendigo TAFE's appeal against last year's full Federal Court ruling that it took unlawful adverse action when it disciplined a teacher who was also a union delegate.
Chief Justice Robert French and Justices Bill Gummow, Kenneth Hayne, Dyson Heydon and Susan Crennan - in three separate judgments - this morning dismissed Federal Court Justices Peter Gray and Mordy Bromberg's finding that the TAFE breached s346(a) and (b) of the Fair Work Act (see Related Article).
In doing so, they rejected the Federal Court majority's reasoning that in adverse action cases, the "real reason" for the behaviour at the centre of proceedings "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".
Chief Justice French and Justice Crennan said there was "no warrant to be derived" in the Act for treating the "because" in s346 or the statutory presumption in s361 "as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action".
"The imposition of the statutory presumption in s361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains 'why was the adverse action taken?'," they said.
They continued that "direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity".
Chief Justice French and Justice Crennan said the approach adopted by the primary judge - Justice Richard Tracey - was correct. The TAFE's chief executive officer, Dr Louise Harvey, had given evidence on her reason for taking adverse action against the delegate and "also gave positive evidence that this was not for a prohibited reason and that she would have taken the same action against a person circulating a similar email who was not an officer of the AEU".
"That evidence was accepted by the primary judge and his findings in that regard were not challenged before the Full Court.
"The [TAFE] discharged the burden cast upon it to show that the reason for the adverse action was not a prohibited reason, and that [the delegate's] union position and activities were not operative factors in him being required to show cause."
Justices Gummow and Hayne - in "general agreement" with the other joint decision - said the "relevant frame of reference in this case is a statutory provision in which neither the words 'objective' nor 'subjective' appear".
"There is an inherent risk of misguidance when seeking to imply tests or requirements in the application of a statutory provision absent some persuasive basis to do so. Nothing was put in argument, nor are there any decisions of this Court, to provide such a basis. Indeed, no direct challenge was made to what had been said by Mason J in Bowling," they said.
They continued that the reliability and weight of the employer's evidence was to be balanced against the employee's evidence and the overall facts and circumstances of each case - "but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry", they said.
Justice Heydon said that nothing in the Fair Work Act expressly suggested that the courts were to search for "unconscious" elements in the impugned reasoning of those in the TAFE chief executive's position.
"No requirement for such search can be implied. This is so if only because it would create an impossible burden on employers accused of contravening s346 of the Act to search the minds of the employees whose conduct is said to have caused the contravention.
"How could an employer ever prove that there was no unconscious reason of a prohibited kind? An employer's inquiries of the relevant employees would provoke, at best, nothing but hilarity. The employees might retort that while they could say what reasons they were conscious of, they could say nothing about those they were not conscious of."
Justices Gray and Bromberg on February 9 last year found the TAFE breached the Act's adverse action provisions when it suspended the teacher/AEU delegate, refused him permission to enter the workplace and denied him internet access after he emailed AEU members at the campus alleging several colleagues had told him that they had been asked to be part of producing "false and fraudulent documents" for a re-accreditation audit.
The Fair Work review panel in its report last month effectively recommended that the February ruling be overturned, saying the Act should be amended to give more weight to the subjective intention of employers in adverse action cases (see Related Article).
The Federal Government intervened in support of the teacher/delegate in the High Court appeal.