Sec 361 of the Fair Work Act 2009 is an extraordinary provision because it provides that in an action for a remedy for adverse action (or a contravention of that Part of the Act called General protections) the onus of proving that the action was not taken due to the alleged intent is upon the person against whom the allegation is made. To lawyers, this is known as a reverse onus of proof.
The practical significance of it is huge. Where it is alleged by an employee that he or she was subject to adverse action, perhaps disciplinary action or even dismissal, because of a particluar prohibited reason (eg exercising a workplace right), the onus of dis-proving the allegation lies upon the employer.
In an important decision, the High Court clarified the effect of the provision in late 2012 in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) HCA 32. I will discuss this case, and its implications, in a Blog to be called Barclay’s case within the next several days.