By Simon Rogers
For employers who manage whistleblower complaints, the Full Federal Court’s decision in Reiche v Neometals Ltd [2026] FCAFC 53 is a welcome one.
It is the first appellate authority on the private sector whistleblower protections in Part 9.4AAA of the Corporations Act 2001 (Cth) as they have stood since 1 July 2019, and it continues an unbroken run of unsuccessful compensation claims under those provisions.
Mr Reiche, formerly Head of Recycling at Neometals, raised a series of governance and commercial concerns during 2024. His role was later made redundant and his employment terminated. He alleged this was reprisal for protected disclosures and sought relief under s 1317AE. Feutrill J dismissed the claim at first instance (Reiche v Neometals Ltd (No 2) [2025] FCA 125), and the Full Court dismissed all 15 grounds of appeal.
The practical value of the decision lies in where it directs the inquiry. The relevant question is not what the discloser in fact did, nor whether a disclosure objectively qualified for protection. It is what the alleged wrongdoer subjectively believed or suspected at the time of the detrimental conduct.
The Court framed this across four elements: whether the decision-maker believed or suspected (1) a disclosure had been or might be made; (2) that it concerned misconduct or an improper state of affairs; (3) that the discloser had reasonable grounds; and (4) whether that belief or suspicion was the substantial and operative reason for the detriment. Liability arises only if all four are satisfied.
The Full Court provided helpful guidance to those managing these types of claims; a respondent need not prove that the discloser in fact lacked reasonable grounds; it is enough that the respondent did not believe or suspect such grounds existed. Nor must the decision-maker have believed the disclosure would qualify as a “protected disclosure” in the statutory sense. And a circumstance that merely featured in a decision, but was not material to it, will not be “the reason, or part of the reason” for the detriment: only matters that bear substantially and operatively on the decision count.
The subjective focus will be familiar to anyone who advises on general protections. As under the Fair Work Act 2009 (Cth) and Board of Bendigo Regional Institute of TAFE v Barclay [2012] HCA 32, the decisive question is the actual reasons of the person who acted, not an objective reconstruction of them.
Two cautions temper the welcome clarification; with which those who practice in the area will be all too familiar. First, a respondent can be liable for acting on a belief or suspicion that proves wrong, because the provision targets belief, not knowledge. Second, the reverse onus in s 1317AD(2B) means that once an applicant raises a reasonable possibility of prohibited conduct, the respondent must disprove it was a motivation behind the impugned action. There is a low bar for there to be a ‘meritorious’ claim, before the onus shifts to the employer to rebut it.
Where several people contribute to a decision, a proscribed reason held by any one of them may taint the whole, so the defence will need to be appropriately cautious of the evidence that is called.
The lesson for employers is the one given as standard on general protections matters: identify potential disclosures early, ensure decisions are made by the right people for properly understood reasons, and document those reasons contemporaneously. Well-kept records remain the most reliable way to discharge the onus.
