Redundancy and adverse action - calling all decision makers

Articles Written by Jan Dransfield (Partner), Andrea Sun

Since the High Court's landmark decision in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, there has been an increasing focus on the identity and role of the decision-maker in the context of terminations of employment. A recent decision of Justice Gray in National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 (handed down on 16 May 2013) provides some key lessons for employers in relation to adverse action claims, particularly in the context of redundancies.


The National Tertiary Education Union (NTEU) was successful in its application alleging that Professor Bessant was dismissed from her employment at the Royal Melbourne Institute of Technology (RMIT) because she had exercised her workplace rights. Justice Gray ordered that RMIT:

  • reinstate Professor Bessant, and treat her as having been continuously employed (with a set-off in back-pay for redundancy pay and amounts paid in lieu of notice);
  • pay a penalty of $27,000 to the NTEU for breaching s 340(1)(a)(ii) of the Fair Work Act 2009 (Cth) (Act); and
  • pay a penalty of $17,000 to the NTEU for breaching RMIT's enterprise agreement.



As background, Professor Bessant was the Discipline Head of Youth Work at RMIT. Professor Bessant reported to Professor Hayward, who in turn reported to Professor Fudge, the Pro-Vice Chancellor and Head of the College of Design and Social Context. At the relevant time, Professor de la Harpe was standing in for Professor Fudge. Professor Fudge (and, accordingly, Professor de la Harpe) reported to Professor Gardner.

Marcia Gough, Executive Director, Human Resources, provided human resources support at RMIT.

Whether Professor Bessant had in fact exercised workplace rights was not an issue in the proceedings. RMIT accepted that Professor Bessant's complaints to RMIT itself, the NTEU and WorkSafe Victoria about Professor Hayward's management practices amounted to the exercise of workplace rights within the meaning of the Act.

In relation to the crucial question of the reasons for Professor Bessant's dismissal, Professor Hayward had sent a memorandum to Professor Gardner, via Professor Fudge and Ms Gough, seeking approval for a targeted redundancy in the Youth Work program area. That memorandum received Professor de la Harpe and Ms Gough's endorsement, and Professor Gardner's approval.

RMIT contended that Professor Bessant was dismissed because of the redundancy of her position. RMIT claimed that Professor Gardner, the Vice-Chancellor of RMIT, was the sole person responsible for the decision to dismiss Professor Bessant. Accordingly, RMIT called Professor Gardner as its only witness. The Court considered this a factor in finding that RMIT had not discharged its onus under s 361 of the Act to prove that the reasons for Professor Bessant's dismissal did not include her exercise of workplace rights.


Justice Gray held that RMIT had not discharged its onus of proving that Professor Bessant's exercise of workplace rights was not part of the reasons for her dismissal because:

  • RMIT's counsel did not put this to Professor Gardner at the hearing;
  • no contemporaneous account of Professor Gardner's reasons for deciding that Professor Bessant should be made dismissed was put before the Court; and
  • there was no clear and cogent process of reasoning leading to the conclusion that Professor Bessant needed to be dismissed.

Justice Gray stated that RMIT had not satisfied its onus under s 361 of the Act because Professor Gardner's own evidence indicated that she had reasons other than those to which she referred explicitly. There was an absence of any clear expression of a connection between the financial deficit in the Youth Work discipline and the choice of Professor Bessant as the one who should be made redundant.

Importantly, Justice Gray was not satisfied that Professor Gardner was the sole decision-maker for Professor Bessant's dismissal. Justice Gray found Professor Gardner did not investigate the reasons why Professor de la Harpe and Ms Hough endorsed the memorandum prepared by Professor Hayward.

Justice Gray found that, in those circumstances, whatever reasons Professor de la Harpe and Ms Gough had for making their decisions were "an essential part of the process leading to the ultimate decision to make Professor Bessant redundant". Accordingly, Justice Gray considered that the failure to call either Professor de la Harpe or Ms Gough to give evidence meant that RMIT had failed to demonstrate that their decisions were not made because of the reasons alleged in the claim.

Lessons for employers

Employers should consider the following in order to be able to defend adverse actions claims:

  • identify all individuals involved in the decision-making process. This is particularly important for large organisations with multiple levels of reporting;
  • consider whether calling only one or some of these individuals as witnesses will affect the employer's ability to discharge its onus under the Act;
  • keep contemporaneous accounts of the reasons for dismissing an employee or taking other adverse action; and
  • keep records of the reasoning process for choosing to make a particular employee's role redundant based on, for example, objective criteria linked to financial information.
Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).

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