Compensation for unfair dismissal; allowing for contingencies

Compensation for unfair dismissal; contingencies
The principles in Barclay were summarised as follows by the Full Court of the Federal Court in State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32]:
o …
o The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
o That question is to be answered having regard to all the facts established in the proceeding.
o The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
o It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
o Even if the decision-maker gives evidence that he or she acted solely for nonproscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
o If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.
In Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014 (“Clermont Coal”) at [120], Reeves J stated:
“These authorities therefore place the focus on the reasoning process that led to the ultimate decision. Where the decision was made by one person and her or his reasoning for the decision was based on one incident involving the employee, the task is relatively straightforward. The judgments in Barclay and BHP Coal require a focus on the reasoning process employed by that person to determine whether the employer has discharged its onus under s 361(1) of the FWA to show that the reasoning process did not include, as a substantial and operative reason, the alleged prohibited reason or reasons. However, the employer is only required to show that none of those reasons was a “substantial and operative reason”. It does not need to negate every reason, however immaterial it was to the reasoning process underpinning the decision to dismiss the employee concerned: see Barclay at [104] and [127] per Gummow and Hayne JJ, and [140] per Heydon J.”
Collison v Brighton Road Enterprises Pty Ltd & Anor [2016] FCCA 186 (5 February 2016)