What follows is an interesting extract from a Fair Work Commission decision which asserts that there is no burden of proof in proceedings in the Fair Work Commission. I consider this controversial.
“ Nor do we consider Designer Life has established an arguable case of appealable error in relation to the onus of proof regarding whether the applicant was dismissed. In respect of this ground, Designer Life’s application suggests that, pursuant to section 361, Ms Miller bore the burden of establishing that she had been dismissed. This is misconceived, as section 361 deals with the reasons for an action. More generally, references to onus are not necessarily of assistance. In relation to administrative tribunals which are not required to apply the rules of evidence, it has generally been held that no party bears a formal onus of proof.9 The Commissioner had to determine, on the material before him, whether Ms Miller had been dismissed within the meaning of that term for the purposes of section 386(1)(b). He considered, on that material, that she had been.”
Appeal by Designer Life (Queensland) Pty Ltd As Trustee For The Designer Life (Queensland) Trust v Lisa Miller [2025] FWCFB 179 delivered 15 August 2025 per Butler DP, Hunt C and Durham C