Reiche v Neometals Ltd [2026] FCAFC 53

This appeal arose out of a dispute between a senior employee and his former employer about the Corporations Act whistleblower protections. Mr Reiche worked for Neometals as Head of Recycling from October 2023. Neometals was a listed Australian company operating in sustainable processing solutions, mainly in the mining sector. His role was not confined to internal management. He also represented Neometals on the management board of Primobius, a jointly owned subsidiary used for a battery recycling plant project in Germany.

That commercial setting is important. The concerns Mr Reiche raised were not framed as a simple workplace grievance. They sat in a joint venture and project delivery context involving governance, commercial arrangements, supplier relationships, possible misuse of confidential information, possible intellectual property issues and a disputed signature on a purchase order. In July 2024 he delivered a letter to Neometals' general counsel that consolidated earlier concerns and expressly identified itself as a disclosure under Part 9.4AAA of the Corporations Act.

At the same time, Neometals was moving through broader corporate structuring and resourcing processes. On 21 August 2024 the board approved a restructure plan that included making Mr Reiche's role redundant. Notice was given to him and to the ASX on 22 August 2024. The company sought to consult with him, but he did not participate, apparently because of illness. On 4 September 2024, on the recommendation of the people and culture manager, the CEO terminated his employment with immediate effect. Mr Reiche then sought injunctive, declaratory and compensation relief, alleging that the redundancy and dismissal were detrimental conduct taken because of his disclosures.

The appeal focused on the compensation pathway in ss 1317AD and 1317AE of the Corporations Act. Under s 1317AD(1), a court may make orders if three broad elements are satisfied. First, the respondent engaged in detrimental conduct that caused detriment. Second, when engaging in that conduct, the respondent believed or suspected that the person had made, may have made, proposed to make or could make a disclosure that qualifies for protection under Part 9.4AAA. Third, that belief or suspicion was the reason, or part of the reason, for the detrimental conduct.

In this case, the first element was not the battleground. Neometals accepted that making Mr Reiche's role redundant and terminating his employment immediately were forms of detriment. The real contest was over the second and third elements. Did the relevant decision-makers believe or suspect that Mr Reiche had made, might make, or could make a protected disclosure? And if so, was that belief or suspicion a reason that moved them to take the action they took?

The appeal also involved s 1317AD(2B), which deals with burden of proof. The primary judge explained that once the applicant points to evidence suggesting a reasonable possibility of detriment, the respondent bears the burden of proving the claim is not made out. In practical terms, that means employers should expect close scrutiny of their evidence about who knew what, what they thought the complaint was, and why they acted.

One of the more important parts of the judgment is the court's discussion of how to assess whether a decision-maker believed or suspected that a qualifying disclosure had been, or could be, made. The primary judge, whose approach was discussed by the Full Court, said this is quintessentially a question of fact. That points to a subjective inquiry. The court is asking about the actual state of mind of the person who engaged in the detrimental conduct.

But the inquiry is not purely subjective in the sense of simply accepting a witness saying, "I did not think this was whistleblowing". The court must look at all the circumstances and evidence. The primary judge also explained the inquiry in a way that includes an objective component. In the context of s 1317AD(1)(b), the question was whether the decision-maker believed or suspected that Mr Reiche subjectively possessed grounds for suspicion of the matters described in s 1317AA(4) or (5), and if so, whether those grounds would objectively be reasonable grounds for that suspicion.

That distinction matters for businesses. A manager's actual thinking remains central. But the content of the information raised, and whether it obviously concerns misconduct or an improper state of affairs, can affect whether a court accepts that the manager did or did not hold the relevant belief or suspicion. If the information obviously points to serious wrongdoing, it may be harder to deny that possibility was appreciated. If the information looks more like ordinary commercial risk reporting, strategic disagreement or project management, the employer may have a stronger argument that the relevant state of mind was absent.

The primary judge also observed that where a putative whistleblower has information that does not obviously or readily engage the regulatory functions of ASIC, APRA or another Commonwealth authority in relation to the entity, a person causing detriment may plausibly not have reason to believe or suspect that disclosure of that information would qualify for protection. That observation helps explain why the factual characterisation of the concerns raised in this case mattered so much.

A major construction issue was whether a claimant must prove that a qualifying disclosure was in fact made. The primary judge concluded, and the appeal did not disturb that outcome, that an actual qualifying disclosure is not an express element of the cause of action under ss 1317AD and 1317AE. The text refers to a person who believes or suspects that another person made, may have made, proposes to make or could make a qualifying disclosure. That language extends beyond disclosures already made.

The reasoning also drew support from the protective purpose of the regime. If the law only operated after a qualifying disclosure had actually been made, it would leave less protection against threats or reprisals aimed at stopping a disclosure from being made in the first place. So, for compensation claims of this kind, the focus can be on the wrongdoer's belief or suspicion, even if the legal status of the disclosure itself is contested.

The next issue was causation. The statute requires that the belief or suspicion be "the reason, or part of the reason" for the detrimental conduct. The primary judge, drawing on analogous adverse action authorities, said this does not extend to a reason that was merely incidental. It must be a reason that moved the person to act. The mere fact that a proscribed belief or suspicion was considered or taken into account does not automatically satisfy the section.

That is a practical point with real consequences. In many employment disputes, the employee can show timing that looks suspicious. But timing alone may not answer the statutory question. The court will want to know what actually motivated the decision-maker. Was the complaint or possible disclosure part of the operative reasoning behind the redundancy or dismissal, or was the action taken for other reasons that the court accepts?

The Full Court's reasons show that the primary judge made detailed factual findings about the different disclosures relied on by Mr Reiche. Those findings were central to the result. For the board presentations in February and March 2024, the primary judge found that none of the Neometals board members believed or suspected that Mr Reiche had made, might have made, proposed to make or could make a protected disclosure concerning the subject matter of those presentations.

The reasons quoted by the Full Court explain why. The presentations were not identified by Mr Reiche as disclosures under the whistleblower policy. The concerns raised did not readily and obviously fall within the policy's description of inappropriate conduct. Nor did they readily or obviously involve disclosure of information about misconduct or an improper state of affairs relating to Neometals. Broadly, the concerns were characterised as strategic or commercial risks associated with the way the Primobius joint venture was operating. The directors were already aware of those strategic and commercial risks because they were inherent in the joint venture structure and agreements.

The primary judge also dealt with the April 2024 concern raised with the CEO about reverse engineering, misuse of confidential information and possible intellectual property breaches. The judge accepted Mr Reed's evidence that he did not consider Mr Reiche was acting as a whistleblower because raising such matters was part of his job. The judge said the concern exposed Primobius to legal and financial risk and, through Primobius, exposed Neometals to financial risk, but that the existence of those risks was not obviously misconduct or an improper state of affairs in relation to Neometals within s 1317AA(4). On that basis, the judge accepted that Mr Reed had no reason to think Mr Reiche was making, might have made, proposed to make or could make a protected disclosure in relation to that concern.

The Full Court dismissed the appeal. On the material set out in the reasons, that means the appellant did not show reversible error in the primary judge's construction of the statutory provisions or in the factual conclusions about the relevant decision-makers' reasons and states of mind.

For business owners, directors and senior managers, the main lesson is to avoid informal handling of serious internal reports. A concern may arrive through a board paper, a project update, a legal risk discussion or a line manager conversation rather than through a document labelled "whistleblower disclosure". That does not remove the risk. The court will look at substance, timing, recipients and the decision-makers' actual understanding.

First, triage serious concerns early. If a report touches governance failures, misuse of information, conflicts, legal breaches, improper conduct or suspicious documents, assess whether it may engage the whistleblower regime even if it also looks like ordinary management reporting. Second, control information flow. This case records that the July 2024 letter was shared internally only gradually. That kind of staggered circulation can become important later because liability may turn on exactly who knew about the disclosure and when.

Third, separate complaint handling from employment decision-making where possible. If a restructure, redundancy or termination is already under consideration, keep a clear record of the commercial process, the timeline and the people involved. If the same individuals are both receiving the complaint and deciding the employment outcome, the evidence can become much harder to defend. Fourth, document reasons carefully. Because s 1317AD(2B) can shift the burden onto the respondent once the applicant clears an initial threshold, employers should expect to prove their reasons with contemporaneous records and credible witness evidence.

Finally, do not overread the outcome. The employer won this case, but only after detailed litigation about statutory construction, state of mind and causation. The cost and disruption of that process are themselves a warning. Good governance, disciplined record-keeping and a workable whistleblower process remain the safest commercial response.

The appeal was heard on 25 November 2025 and decided on 4 May 2026 by Snaden, Raper and Neskovcin JJ in the Full Federal Court. It was an appeal from Reiche v Neometals Ltd (No 2) [2025] FCA 125, reported at (2025) 338 IR 312. The Full Court ordered that the appeal be dismissed.

The reasons identify the case as concerning whistleblower protections under Part 9.4AAA of the Corporations Act, including ss 1317AA, 1317AD, 1317ADA, 1317AE and 1317AH. The court also referred to adverse action authorities under the Fair Work Act when discussing causation and prohibited reasons.