On 7 September 2012, the High Court of Australia handed down its
decision in the landmark case of Board of Bendigo Regional
Institute of Technical and Further Education v. Barclay and
Anor [2012] HCA 32. The High Court unanimously upheld the
appeal and in so doing found that for the purposes of the general
protection provisions in the Fair Work Act 2009 (Cth)(the
Fair Work Act), the subjective intent of the employer is a relevant
consideration.
The lesson for employers is to make sure that there is evidence
of such intent and that it is documented at the time of dealing
with the employee and that the evidence is preserved.
Facts
Mr Barclay was employed by the Bendigo Regional Institute of
Technical and Further Education (BRIT) as a teacher and he was also
Sub-Branch President and delegate for the Australian Education
Union (AEU). He had emailed AEU members on his work email alleging
that several members had informed him that they had witnessed or
been asked to
