Ruling reshapes how courts assess belief and suspicion in whistleblower reprisal claims
The Federal Court Full Court on 4 May 2026 dismissed a former executive's appeal and clarified what companies must believe before reprisal liability arises under the Corporations Act.
In Reiche v Neometals Ltd [2026] FCAFC 53, Justices Snaden, Raper, and Neskovcin upheld the dismissal of Christian Gerhard Reiche's whistleblower claim against Neometals Ltd, a listed Australian company that operates a business focused on sustainable processing solutions, predominantly in the mining industry.
Neometals engaged Reiche in October 2023 as "Head of Recycling". The role represented Neometals' interests on the management board of Primobius, a subsidiary jointly owned with a German company, through which the partners carried out a joint venture to design and construct a lithium-ion battery recycling plant for a client in Germany.
Across 2024, Reiche raised a series of concerns. He flagged governance concerns, conflicts with the interests of Neometals' German partner, and commercial arrangements with that partner and Primobius's key supplier at February and March 2024 board meetings. In April 2024, he told chief executive Christopher Reed that certain components required to build the plant had allegedly been "reverse engineered" from a third party. He also queried, twice in early April, the circumstances in which his predecessor's signature on a purchase order may have been applied otherwise than by her or with her authority. On 9 July 2024, he hand-delivered a letter to general counsel Cathal Smith consolidating the disclosures and identifying itself as a disclosure to which Part 9.4AAA applied.
On 21 August 2024, the Neometals board, composed of Reed, Steven Cole, Dr Jennifer Purdie, Lee Guthrie, and Douglas Ritchie, resolved to approve a restructure plan that made Reiche's role redundant. Notice was provided to Reiche and the Australian Securities Exchange the following day. The termination decision flowed from the board's resolution, and Reed resolved on 4 September 2024 to terminate with immediate effect on the recommendation of people and culture manager Amanda Di Virgilio.
The primary judge dismissed Reiche's application on 28 February 2025, and Reiche pressed 15 grounds on appeal.
The Full Court's central holding concerned s 1317AD(1)(b). The judges identified three possible readings and endorsed the "third construction". Under that approach, it is unnecessary for a wrongdoer to appreciate that there is or would be a legal consequence arising from a disclosure they believe or suspect has been or might be made. What is required is a subjective belief or suspicion about the elements that accumulate to a point that attracts protection, relevantly, that a person has, with reasonable grounds, made or might make a disclosure concerning misconduct or an improper state of affairs relating to a regulated entity.
The court drew support from the Revised Explanatory Memorandum to the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018, which removes the requirement that the victimiser had actual knowledge of a disclosure. The memorandum justified the change by reference to the need to address conduct that victimises a person "because of the perception of involvement in whistleblowing".
The judges also confirmed that a proscribed reason must operate as a "substantial and operative" factor in the detrimental conduct, importing principles from General Motors Holden Pty Ltd v Bowling and Fair Work Act general protections case law. Mere background context does not suffice.
Applying that framework, the Full Court accepted the primary judge's findings that no member of the Neometals board held a relevant belief or suspicion when they approved the restructure on 21 August 2024. The directors first received copies of the 9 July letter on 21 August 2024, when it was emailed to them by Reiche's legal representatives.
The primary judge had found that Smith and chief financial officer Christopher Kelsall held the relevant belief or suspicion as of 9 July 2024, while Di Virgilio's suspicion formed in late July 2024 following conversations with Kelsall. However, the court accepted that this belief or suspicion was not the reason, or part of the reason, why they recommended Reiche's role for redundancy.
On the termination decision, the court accepted that the reason was that Reiche's role had been made redundant and agreement on continuing employment in an alternative role had not been reached within a reasonable period. Termination with immediate effect was because Reiche had not engaged with Neometals and was thought unlikely to engage in future.
Neometals had relied on a notice of contention denying that any disclosures qualified for protection. It later abandoned that notice.
