In the Tribunals

Case 1: Jones v CPE (FWA)Case 2: The Board of Bendigo Regional Institute of TAFE and Barclay and Another (HCA)

Jones v CPE:

• Unfair dismissal matter• FWA found– Valid reason for termination– Unfair dismissal because of a less than

procedurally fair process– Ordered payment of 12 weeks salary in

compensation

Jones v CPE: the Basic Facts• Mrs Karen Jones commenced as probation and parole

officer (AO4) on 14 June 2011• Appointment for 12 months with ongoing employment

upon satisfactory completion of training• Mrs Jones terminated as a Probation & Parole Officer

on 13 January 2012 on the grounds that she had:– failed to be open and truthful in her application for

employment in advising that her husband was a parolee; and

– subsequently failed to respond to this matter in an open and transparent manner

Jones v CPE: the Basic Facts (continued)

• Mrs Jones had relied on a narrow interpretation of “associate” when completing her Criminal History and Integrity Form

• Mrs Jones sought confirmation of her interpretation of “associate” from a range of sources, but not Northern Territory Correctional Services in the Department of Justice

• Mrs Jones had previously worked in correctional services in Queensland

Jones v CPE: the Basic Facts (continued)

Exchange of correspondence– For 3 months from October 2011 to January 2012– Allegations of serious misconduct– Responses denying any wrongdoing as well as

complaints of a lack of managerial support and bullying in the workplace

Jones v CPE: the Basic Facts (continued)

• DOJ found that – she failed to be open and transparent; and – she failed to appreciate the potential for actual or

perceived conflicts of interest to arise with work in the criminal justice system

• During the disciplinary process DOJ did not suspend Mrs Jones from duty

Jones v CPE: Fair Work Australia’s Consideration of the Matter

• Management of the matter amounted to a disciplinary process by correspondence

• Failure to provide Mrs Jones with any face-to-face meetings– No viable opportunity to respond to the

allegations– No opportunity to have a support person

Jones v CPE: Fair Work Australia’s Consideration of the Matter

(continued)

•Mrs Jones continued to work during a disciplinary process for serious misconduct•Department failed to investigate her concerns about an unsafe workplace and breaches of her privacy

Jones v CPE: Lessons

• Employees should be given a reasonable opportunity to respond to allegations of serious misconduct through face-to-face discussions as well as formal correspondence

• Employees should be given the opportunity to have a support person present during these discussions

Jones v CPE: Lessons (continued)

• Avoid discipline by correspondence• Prompt investigation of allegations of

misconduct• Consideration of suspension during

investigation of allegations of serious misconduct

Jones v CPE: Lessons (continued)

• Exercise caution before dismissing an employee

• Consider questions associated with the employee’s ability to find alternative work

• Pay close attention to the wording of recruitment documents, especially in relation to imprecision or ambiguity

Jones v CPE: More Information

Unfair Dismissal Case Study: Commissioner’s Information Sheet

The Board of Bendigo Regional Institute of TAFE and Barclay and

Another• High Court of Australia• Clarifies the law in relation to adverse action

claims under the General Protections provisions of the Fair Work Act 2009 (Cth)

• Some adverse action claims have been made in the Northern Territory Public Sector

Barclay: AbbreviationsAEU Australian Education Union

BRIT Bendigo Regional Institute of Technical and Further Education

HCA High Court of Australia

FW Act Fair Work Act 2009 (Cth)

Barclay The Board Bendigo Regional Institute of TAFE and Barclay and Anor [2012] HCA 32

Barclay: the LawSection 346 of the FW Act

A person must not take adverse action against another person because the other person:

(a) is or is not, or was or was not, an officer or member of an industrial association; or

(b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b)…

Barclay: the Law (continued)FW Act Section 347 meaning of Industrial Activity

A person engages in industrial activity if the person:

(a) becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or

(b) does, or does not:

(i) become involved in establishing an industrial association; or

(ii) organise or promote a lawful activity for, or on behalf of, an industrial association; or

Barclay: FW Act Section 347 (continued)

(iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association; or

(iv) comply with a lawful request made by, or requirement of, an industrial association; or

(v) represent or advance the views, claims or interests of an industrial association; or

(vi) pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association; or

(vii) seek to be represented by an industrial association…

Barclay: the Law and the Reverse Onus of Proof

• Section 361 of the FW Act establishes a reverse onus of proof for contraventions of the General Protections provisions

• Adverse action is presumed to have been taken for the prohibited reason or with that intent unless the person proves otherwise

Barclay: the Basic Facts

• BRIT undergoing a re-accreditation process• Greg Barclay – Team leader involved in re-accreditation process– AEU sub-branch President at BRIT– Through his work and through representation

from AEU members forms a view that inaccurate information is being placed into the re-accreditation documents

Barclay: the Basic Facts (continued)

• Greg Barclay sent an email to all AEU members at BRIT, which said:– AEU members are being asked to be part of producing

false and fraudulent documents for the audit– AEU members should not participate in fraudulent

activities• BRIT management formed the view that the

email was a breach of discipline because Greg Barclay had not followed proper procedures and may have damaged the reputation of BRIT

Barclay: the Basic Facts (continued)

• BRIT commenced disciplinary action—including suspension and exclusion from its email system

• AEU alleged adverse action because Greg Barclay was acting as its officer

• Matter went to the Federal Court– Application dismissed in the first instance– Judge accepted evidence of the principal that she had

dealt with a potential breach of discipline—not with an AEU official

Barclay: the Basic Facts (continued)

• Appeal to a Full Bench of the Federal Court– FB upheld the AEU appeal that adverse action had

been taken against Greg Barclay because of his union activity

– FB held that the principal had taken action for an unconscious reason or a reason which was not appreciated or understood by her which was prohibited

Barclay: the Decision

• HCA upheld the BRIT appeal• HCA clarified that the correct approach required

attention to the particular reason for the adverse action

• This reason could be adduced through evidence provided by the decision maker in the court in the first instance

• Traced the reverse onus of proof principles back to the Conciliation and Arbitration Act 1904 (Cth)

Barclay: Lessons

• Need to be mindful of general protection provisions and the risk of an adverse action claim

• Ensure that prohibited reasons do not form part of the decision making process

• Accept that the decision making process could be subject to consideration by a court