Alex Kohn
14 September 2012

Educational Institution Succeeds in High Court over the Discipline of an Employee

Alex Kohn

Partner And Chairman

Tel: 02 9233 9036

Mob : 0421 315 168


Dispute Resolution


Charities and Not-For-Profits Dispute Resolution



Employment, Professional Conduct and Safety

The Finding

On 7 September 2012, the High Court Of Australia allowed an appeal by Bendigo Regional Institute of Technical and Further Education (Bendigo Education) who argued that it was not illegal to fire an employee, Gregory Barclay (Mr Barclay) shortly after he sent an all staff email alleging serious misconduct by a number of other employees.

The Facts

Mr Barclay emailed all staff alleging several employees had fraudulently prepared company documentation in preparation for an audit. The email did not name the employees and so defamation, as briefly discussed in my previous article “Online Social Networking – Issues for Staff & Students” was not an issue.

Management, however, took the opposite view that it was the failure to disclose the names of the employees that formed part of Mr Barclay’s improper conduct, together with failing to disclose the alleged fraudulent conduct to the employer at an earlier time, under company policy. Management requested Mr Barclay disclose further information including the names of employees said to be involved, however he continued to withhold that information which hindered investigations.

Mr Barclay was ultimately dismissed for the inappropriate ways that he raised serious misconduct.

The Law

The Fair Work Act 2009 (Cth) (Act) prohibits”adverse action” being taken against an employee under a number of grounds and Mr Barclay alleged that Bendigo Education had taken action against him under the prohibited ground of”Industrial membership or activity”.

While the Full Court of the Federal Court upheld Mr Barclay’s claim, the High Court overturned that finding and instead accepted the original decision of the trial judge that no action had been taken by Bendigo Education under any of the grounds prohibited under the Act.

The Lessons

Three considerations arising from this case for an employee:

  1. You have obligations under your contract of employment.
  2. There will also be policies and procedures regarding email use, conduct and reporting.
  3. Reporting should occur at the earliest time, with the fullest cooperation and through appropriate channels – usually a discrete person or group.

Three considerations arising from this case for an employer: 

  1. Have you drafted appropriate obligations and protections into your employment contracts?
  2. Do your policies and procedures extend those obligations in a way that bind your staff? Refer to my previous article “Online Social Networking – Issues for Staff & Students”
  3. When you take action, are the reasons and considerations for that action documented and within the scope of the contract of employment, polices & procedures and the Act?

Latest Firm Published Insights