The employee claimed the suspension was adverse action taken against him because of his union role. The Federal Court dismissed the application, finding the suspension was not because of his union membership or activities.
However, on appeal, a majority of the Full Federal Court overturned this decision. The Court held the email was sent by the employee in his capacity as a union official and that this was the primary reason for his suspension. The Court noted the subjective intention of the employer (which was to discipline the employee for misconduct) was not decisive and the “real reason” for the adverse action may be “conscious or unconscious”. The employer’s characterisation of the conduct as that of an employee (as opposed to that of a union official) did not change its objective intention. Further, the Court held that protection of union officers from adverse action is not confined to their status as members, but extends to activities incidental to their membership.
The matter was remitted to the trial judge for assessment of appropriate penalties.
Barclay v The Board of Bendigo Regional Institute of Technical and Further Education  FCAFC 14