Drawing inferences in unfair dismissal cases

The Fair Work Commission applies pretty much orthodox Australian court rules about evidence in unfair dismissal cases. The courts have developed rules which permit them to draw inferences from facts and evidence. In this case, an extract from the decision which is published here, contains a reference to a Deputy President of the Commission drawing inferences from the fact that a potential witness for an employer’s defence of the case sat at the bar table during the hearing but did not take the opportunity of giving evidence to the Commission.

“[32] Mr Kalache, as decision-maker in Applicant’s dismissal, gave no evidence in these

proceedings despite being able to do so (i.e. he was present at the hearing providing instructions

as to the Respondent’s case to Ms Cahill). I infer that Mr Kalache’s failure to give evidence in

these proceedings occurred because his evidence would not have assisted the Respondent’s case.30

[33] To the extent that the Respondent asserts that the Termination Letter dated 10 January 2023

(set out at paragraph [20] of this decision) reflects the reasons for the Applicant dismissal, I reject

the Respondent’s purported reliance upon such reasons. The matters referred to in the Termination

Letter were not discussed in the termination discussion between the Applicant and Mr Kalache on

9 January 2023 (beyond the cursory). Indeed, in my view, the matters set out in the Termination

Letter are no more than an attempt by Mr Kalache to reframe or otherwise justify the reasons for

the Applicant’s dismissal after it occurred. Even if it might be said that the reasons for the

Applicant’s dismissal included the matters set out in the Termination Letter, the actual or operative

reason for her dismissal (on the evidence) concerns her request for time off (unpaid domestic

violence and/or carer’s leave) until 27 January 2023 to enable her to care for her son until he started

back at school and could be placed in after-school care. Again, this weighs strongly in favour of

a finding that the Applicant’s dismissal was harsh, unjust, and unreasonable (i.e. unfair).”


Singh v Priceline Sutherland Pty Ltd [2023] FWC 1321 delivered 15 June 2023 per Boyce DP