Full Court Minute Books

Case M128/2011

Board of Bendigo Regional Institute of Technical and Further Education v. Barclay and Anor

Case No.


Case Information

Lower Court Judgment

9/02/2011 Federal Court of Australia (Gray, Lander and Bromberg JJ)

[2011] FCAFC 14


Industrial law — Adverse action — General protection — First respondent ("Barclay") an employee of applicant ("Institute") and Sub-Branch President at Institute of second respondent ("AEU") — Barclay sent email to AEU members employed at Institute noting reports of serious misconduct by unnamed persons at Institute — Barclay did not advise managers of details of alleged misconduct — Chief Executive Officer ("CEO") of Institute wrote to Barclay requiring him to show cause why he should not be disciplined for failing to report alleged misconduct — Barclay suspended on full pay — Respondents alleged action taken by CEO of Institute constituted adverse action under s 342 of Fair Work Act 2009 (Cth) ("Act") — Trial judge found adverse action taken by CEO on basis of breach of Institute's code of conduct rather than Barclay's union activity — Full Court of Federal Court held that sending of email was part of Barclay's functions as AEU officer and therefore adverse action had been taken within meaning of Act — Whether evidence that adverse action taken for innocent and non-proscribed reason sufficient to establish defence to cause of action under Pt 3.1 of Act ("general protections provisions") — Whether a decision-maker who is not conscious of a proscribed reason able to be found to have engaged in adverse action contrary to general protection provisions — Whether a distinction exists between the cause of conduct said to constitute adverse action and the reason a person took adverse action — Act, ss 341, 342, 346, 360, 361 — General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605; Purvis v State of New South Wales (2003) 217 CLR 92.

Short Particulars


02/09/2011 Hearing (SLA, Melbourne)

16/09/2011 Notice of appeal

30/09/2011 Written submissions (Appellant)

30/09/2011 Chronology (Appellant)

26/10/2011 Written submissions (Respondents)

02/11/2011 Written submissions (Minister for Tertiary Education, Skills, Jobs and Workplace Relations intervening)

09/112011 Reply

29/03/2012 Hearing (Full Court, Canberra)

07/09/2012 Judgment  (Judgment summary)

10/09/2012 Written submissions on costs (Appellant)

12/09/2012 Written submissions on costs (Respondents)

14/09/2012 Written submissions in reply on costs (Appellant)

03/10/2012 Judgment