This extract from a decision of the Federal Court deals with several tricky evidence principles in the general protections jurisdiction, in this case adverse action.
“105 The leading authority concerning the interpretation and meaning of s 360 and s 361 is Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500. I draw the following relevant propositions from the reasons of the High Court in that case.
(1) The reason for the adverse action is a question of fact arising from the operation of the interdependent provisions of the Fair Work Act: [41].
(2) Determining why an employer took adverse action against an employee involves consideration of the decision-maker’s ‘particular reason’ for taking adverse action (s 361(1)) and, relevantly here, consideration of the employee’s family or carer responsibilities and (or) pregnancy at the time the adverse action was taken (s 351(1)); or workplace right that the employee has or has not exercised or proposes or proposes not to exercise at the time the adverse action was taken (s 340(1)): [42].
(3) An employer interested in rebutting the statutory presumption in s 361 can be expected to rely in its defence on direct testimony of the decision-maker’s reason for taking the adverse action: [43].
(4) The question of fact must be answered in light of all of 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 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: [45].
(5) Direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer: [45].
(6) Although the effect of s 360 is that the proscribed reason need not be the only reason that adverse action was taken, the proscribed reason must be ‘a substantial or operative factor’ or ‘operative or immediate reason’: [62], [104], [140].
See, Barclay at [41]-[45], [62] (French CJ and Crennan J), [104], [119]-[128] (Gummow and Hayne JJ), [140], [149] (Heydon J).
106 Although there may be circumstances in which a single decision-maker has made the decision to take the adverse action and the employer’s reasons for the action may be attributed to that decision-maker, a common circumstance, particularly for large corporate employers, is that the ultimate decision-maker has made a decision based on advice or information provided to that person by other employees. In those circumstances, if other employees have provided information or advice because of a proscribed reason and that advice or information has influenced the ultimate decision-maker’s decision, the reason for the adverse action may be tainted by the proscribed reason even if the ultimate decision-maker subjectively made the decision to take adverse action for non-proscribed reasons: Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215; 273 FCR 332 at [90]-[91] (Greenwood, Besanko and Rangiah JJ), citing Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; 129 IR 251 (Lee, Madgwick and Gyles JJ) and Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; 253 IR 166 at [121]-[122] (Reeves J).
107 Relevantly, the factual enquiry under s 360 and s 361(1) focusses on the reason the employer took adverse action and the reasoning process that resulted in the ultimate decision to take that action. Where that reasoning process involves a number of people, the reasons for each person whose involvement has had a material effect on the ultimate decision may be relevant to determining if a proscribed reason was a substantial operative factor or the operative or immediate reason for the employer taking the adverse action. Accordingly, the reasons for Ms Smith making her recommendation to Mr Ahmad and, in turn, for Ms Greensill and Mr Dunn providing information expressing views about Ms Talaugon’s performance and conduct may be relevant to determining the reason that Mr Ahmad ultimately made his decision to terminate Ms Talaugon’s employment.
108 Nonetheless, in considering the reason for adverse action of an employer it is important to keep in mind that the mere consideration or taking into account a proscribed reason within a decision-making process is not sufficient to render the proscribed reason a substantial operative factor or operative or immediate reason for the decision to take adverse action. In addressing an earlier version of similar provisions to s 360 and s 361 in General Motors-Holden Pty Ltd v Bowling (1976) 12 ALR 605, Mason J (at 616) rejected a construction of the provision favoured by Isaacs J in Pearce v WD Peacock & Co Ltd [1917] HCA 28; 23 CLR 199 (at 205) to the effect that the onus cast on the employer was to demonstrate that the proscribed reason ‘must not enter in any way into the reason of the [employer] if [it] desires exculpation’. Justice Mason, with whom Gibbs, Stephen and Jacobs JJ agreed, said (at 616):
The protection of trade unions and their representatives from discrimination and victimization by employers does not require an interpretation as extreme as that favoured by Isaacs J. It would unduly and unfairly inhibit the dismissal of a union representative in circumstances where other employees would be dismissed and thereby confer on the union representative an advantage not enjoyed by other workers, to penalize a dismissal merely because the prohibited factor entered into the employer’s reasons for dismissal though it was not a substantial and operative factor in those reasons.
109 In Barclay most members of the High Court made positive reference to the approach of Mason J to determining whether adverse action was taken for a proscribed reason or reasons that included a proscribed reason: Barclay at [53]-[62] (French CJ and Crennan J), [104], [127] (Gummow and Hayne JJ). The reasoning of Mason J in Bowling may be applied to ‘if the reasons for the action include that reason’ in s 360. Put another way, the mere fact that a person has considered or taken into account a proscribed characteristic of an employee (family or carer responsibilities or pregnancy) does not mean that the decision to take adverse action was taken because of that characteristic. An operative or immediate reason for action is a reason that moved the person to take the action. By way of example or illustration, a judge will frequently take into account a party’s submissions on a particular matter and those submissions may influence the decision the judge makes, but a submission that is not accepted or not accepted in its entirety is not the reason or a reason for the ultimate decision or judgment: see, e.g., Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; 231 FCR 150 at [91] (Perram J).”
Talaugon v Allight Pty Ltd [2025] FCA 1672 per FEUTRILL J delivered 23 Dec 2025