Evidence and proof in general protections cases

This passage from a recent appeal from the Federal Circuit Court to the Federal Court in a general protections’ case contains and analysis of the legal authorities about the burden and onus of proof in general protections cases.

“The primary judge held that the decision to terminate Mr Smith’s employment was made by all four of the Directors, and that finding has not been challenged by any ground of appeal. That finding should be accepted. Two of the Directors, Mr Mahony and Mr Hombsch, did not give evidence that they were not motivated by Mr Smith’s making of the complaints and inquiries. Since there was a presumption under s 361 of the FWA that Mr Smith’s employment was terminated because he had made the complaints or inquiries, it is necessary to examine the consequences of the appellants’ failure to call those witnesses.

103    In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, French CJ and Crennan J held:

  1. … The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”.
  2. This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, 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. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity

(Underlining added.)

104    In National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139; [2013] FCA 451, Gray J observed:

  1. 25.Barclaywas a case in which there was a single decision-maker, who made the decision to take adverse action against the employee concerned. It is necessary to read what was said in Barclay with the understanding that the Court was not faced with any issue of the possible involvement of more than one person in the making of the decision. Earlier authorities have dealt with that question, in circumstances where a decision is made by a committee or other deliberative body, but also in circumstances in which there is collaboration between officers of an employer at various levels in the employer’s hierarchy, leading to an ultimate decision….
  2. 26.It is often the task of a court to make a finding as to the minds of which natural person or persons constitute the directing mind and will of a corporate body, for the purpose of determining the state of mind of that corporate body. Sometimes, the question is as to the knowledge of the corporate body. As Brennan, Deane, Gaudronand McHugh JJ said in Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 583:

A division of function among officers of a corporation responsible for different aspects of the one transaction does not relieve the corporation from responsibility determined by reference to the knowledge possessed by each of them.

The same can be said of states of mind other than knowledge, such as reason or intent. In Voigtsberger v Council of the Shire of Pine Rivers (No 2) (1981)(1981) 1 IR 198, the question was whether an employee in local government had been dismissed from her employment for a proscribed reason. Although the local council itself had made the ultimate decision to dismiss, Evatt J found that it was an earlier decision of the finance committee that was the critical decision. The council had merely “rubber-stamped” the recommendation of the finance committee later on the same evening. The finance committee consisted of eight councillors, six of whom had not been called as witnesses. His Honour held that the decision to dismiss the employee had not been proved not to be actuated by the proscribed reason alleged.

  1. 28.In Gibbs v Palmerston Town Council[1987] FCA 732 (unreported, Federal Court of Australia, Gray J, 21 December 1987), I referred to both Wood and Voigtsberger. At 84–85, I said:

there is still a difficult question of the extent to which the improper purpose of one person may be a substantial operative factor in the decision of another. Clearly, if the actual decision maker simply “rubber stamps” a decision in fact made by another, the purpose of that other will be a substantial operative factor. At the other extreme, if the actual decision maker truly believes the false and innocent reasons advanced by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person. The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority.

  1. 29.In the present case, part of the task of the Court is to determine in whose mind or minds was to be found the operative mind of RMIT in making the decision to dismiss Professor Bessant. It is necessary to look at the whole of the evidence to determine whether the presumption established by s 361(1) of the Fair Work Act, that the reasons alleged in the statement of claim are among the reasons for that decision, has been rebutted.

105    In Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251; [2001] FCA 1804, the Full Court was concerned with a situation where an employee had been assessed for redundancy by two supervisors, but the general manager made the ultimate decision to terminate the employee’s employment. The Court held at [37] that if the assessment of either of the supervisors was affected by an undisclosed prohibited reason, then the general manager would have, in effect, inadvertently adopted that reason so that the decision of the general manager would have also been for a prohibited reason.

106    In Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd (2015) 253 IR 166; [2015] FCA 1014, Reeves J, having reviewed the authorities, concluded:

  1. 120.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 Barclayand 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
  2. 121.On the other hand, where the reasoning process is dispersed through an assessment process involving a number of persons, the task is much more complicated. In that situation, I consider the judgment in Kodakrequires me to examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision…Instead, it focuses on the conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. If one or more of the reasons employed by one or more of them was a prohibited reason, that will impugn the ultimate decision. This is what I consider the Full Court meant by “inadvertently” adopting an “undisclosed prohibited reason” in Kodak (see at [117] above).
  3. 122.I therefore consider the focus and scope of the inquiry in this matter should proceed in two parts. First, an inquiry to ascertain whose reasons had a material effect on the reasoning process that preceded Mr Pretorius’ultimate decision to dismiss Mr  And, secondly, an inquiry to examine the reasoning employed by those persons to ascertain whether it was affected by a prohibited reason or, to put it in the terms of s 360 of the FWA, whether Clermont Coal has established to the requisite standard that none of the alleged “particular reasons” was a substantial and operative reason for the decision to dismiss Mr Scott…”


An extract from SBP Employment Solutions Pty Ltd v Smith [2021] FCA 601