Evidence in employment law cases

In ordinary civil legal cases in Australia there is a general rule to the effect that a failure by a party to call a witness may, at the discretion of the court, be a reason for drawing unfavourable inferences against the case of that party. The rule also applies in employment law cases such as unfair dismissal and general protections.

“ In Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, the High Court explained the rule in Jones v Dunkel as follows:

  1. 63.The rule in Jones v Dunkelis that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn…
  2. The rule in Jones v Dunkelpermits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party… There is a reason why failure to call a witness or failure to ask a particular question of a witness supports the possible inference that the witness’s evidence would not have assisted the party, while failure of a party-witness to tell the whole truth may support an inference that the party suppressed evidence which would have been damaging to the party-witness. A litigant has no duty to call particular witnesses or to procure that any witnesses called by that litigant are asked particular questions. A litigant who enters the witness box, on the other hand, is under a positive duty to tell the whole truth in answer to the questions asked.

(Underlining added.)

86    It was made clear in Kuhl at [64] that the rule in Jones v Dunkel does not permit an inference that the uncalled evidence would have been adverse or damaging to the case of the party which failed to call the evidence.

87    Similarly, in HML v The Queen (2008) 235 CLR 334, the High Court held at [303]:

…In civil cases the unexplained failure of a party to give evidence, call witnesses or tender material is not treated as evidence of fear that it would expose an unfavourable fact, nor as an assertion of the non-existence of the fact not proved: the only consequence is that the failure can cause an inference arising from the evidence of the opposing party to be more confidently drawn…

88    The position was reiterated in ASIC v Hellicar (2012) 247 CLR 345, where the High Court held at [232]:

…[T]wo consequences can flow from the unexplained failure of a party to call a witness whom that party would be expected to call. One is that the trier of fact may infer that the evidence of the absent witness would not assist the case of that party. The other is that the trier of fact may draw an inference unfavourable to that party with greater confidence. But Jones v Dunkel does not enable the trier of fact to infer that the evidence of the absent witness would have been positively adverse to that party…”

A passage from SBP Employment Solutions Pty Ltd v Smith [2021] FCA 601 per Rangiah J delivered 8 Jun 2021