The statutory protection given employees against adverse action on the basis of political opinion is not restricted to matters of party political outlook but extends to issues of philosophical difference, the Federal Circuit Court has ruled.

Adverse action

The Fair Work Act 2009 (Cth) (the Act) makes it unlawful for an employer to take “adverse action” against an employee because of his/her “political opinion”. Adverse action will include dismissal from employment, but also a wide range of other conduct which results in the employee suffering disadvantage.

In any claim brought by an employee for adverse action, the employer bears the onus of proving that the actions which it took did not have as their substantive and operative cause any of the reasons prohibited by the Act.

Heathcote case – facts

The Plaintiff in the case was a university lecturer in philosophy who had been made redundant following the application of a program of headcount reduction. In identifying staff who were to be made redundant, the university looked at a certain criteria including the number of books or journal articles which the academic had published.

The Plaintiff claimed that his selection for redundancy came about because, as a practitioner of continental philosophies, he had been judged adversely by the senior academics on the selection panel who were devotees of the analytical school of philosophy. He claimed that this amounted to adverse action against him because of his political opinion.

The university defended the claim on two grounds:

  • The “adverse action” took place because of the application of the selection criteria. The employee’s political opinion was not a substantive or operative reason for the redundancy.
  • In any event, the two different streams of philosophy (continental and analytical) do not represent a political division, but a disciplinary distinction. Consequently, even if the Plaintiff’s philosophical outlook was a reason for the redundancy, it was not a matter of political opinion and so the protections of the Act did not apply.

The decision

Judge Driver concluded that the philosophical divisions that existed between staff members represented both disciplinary distinctions and a political division. The two groups formed very distinct “camps” within the university and there had been a history of intense ideological division between them. Given this background, the Plaintiff was entitled to put forward his own political allegiance (in terms of his position within one of the opposing camps) as a reason for the adverse action that was taken against him.

Judge Driver found that the weight of evidence established that the decision to make the Plaintiff redundant flowed from a proper application of the selection criteria. Other people, apart from academics involved in the philosophical dispute, were on the selection panel and this also showed that the “political” division within the philosophy department did not play a role in the selection of the Plaintiff for redundancy.

The claim was dismissed.

What does this mean for employers?

The case confirms the very wide reach of the adverse action remedy contained in the Act, and illustrates the difficulty in having a claim eliminated on a preliminary point of definition (in this case whether the particular outlook of the Plaintiff constituted a “political opinion”).

Employers need to consider the nature and extent of evidence that they might bring to establish the bona fides of any decision to dismiss or discipline an employee, taking account of the very broad nature of the protections which the Act affords.

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