The reverse onus of proof in general protections

The reverse onus of proof in general protections cases

“Section 361 creates a reverse onus. The onus is on the employer rather than the employee to establish why a person was adversely affected, in the workplace. If this onus is not discharged, it is to be assumed that the action in question was taken for a prohibited purpose.
Collier J in Jones v Queensland Tertiary Admissions Centre Limited (No 2)[ Jones v Queensland Tertiary Admissions Centre Limited (No 2) [2010] FCA 399 at [10]23] explained the operation of section 361 of the FWA in the following terms:
o “That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason … it is not sufficient for [an applicant] to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that [an applicant] is able to prove these allegations, the burden is then cast on to [the employer] to prove that adverse action was not taken against [an applicant] because of [her] workplace rights for the purposes of section 340 and 361 of the Act.” (citations removed).
It must also be borne in mind that the issue, in an adverse action claim, arising under section 340 of the Act, is not whether the employee concerned was unfairly dismissed or otherwise unreasonably or poorly treated. The task is to determine, if it is found that adverse action has been taken against the person concerned, what is the reason for that action and whether it was for a proscribed reason. As White J said inTsilibakis v Transfield Services (Australia) Pty LtdTsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740 at [16]
o It is necessary to keep in mind that the focus in a case like the present must be on whether the employer has taken the adverse action for a proscribed reason. It is not a review generally of the fairness of the employer’s conduct. The Full Court made this point in Khiani v Australian Bureau of Statistics when it said:
 “… A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3–1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts. In the present case, the question is whether the respondent has taken adverse action against the appellant because she had a workplace right to be on sick leave, or because she had exercised that right.
 The first question to be addressed in such a case is whether adverse action was taken. Determining this question requires identification of the adverse action alleged. …”
Nor is an application under section 340 of the FWA an opportunity for an applicant to raise any type of grievance, arising from his/her employment. Accordingly these proceedings are not a broad inquiry as to whether Mr Fassina has been “subject to a procedurally fair or substantially unfair outcome.” Ermel v Duluxgroup (Aust) Pty Lty (No 2) [2015] FCA 17 at [48] per Bromberg J

Fassina v Commercial Motor Industries Pty Ltd [2016] FCCA 2114 delivered19 August 2016 per Brown J