This extract from an unfair dismissal case decision of the Fair Work Commission deals with a number of legal principles associated with the propriety of a judicial decision maker drawing inferences about evidence issues including a failure by a party to call a witness or witnesses to give evidence.
“[87] A significant factor in the conclusion that the Respondent failed to discharge their evidentiary onus are the inferences I draw arising from the Respondent’s failure to call certain persons to give evidence, leading to the inferences that the evidence of such persons would not have assisted the Respondent’s case.
[88] In Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited,28 the Full Bench of the Fair Work Commission found:
The rule in Jones v Dunkel has been aptly described as ‘a rule of common sense and fairness in relation to the fact finding process.’ The rule was considered extensively in Tamayo v Alsco Linen Service Pty Ltd (Tamayo). In that matter the Full Bench made the following general observation about the rule in Jones v Dunkel:
‘1. The unexplained failure by a party to give evidence, to call witnesses, or to tender documents or some other evidence may in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted the party’s case. The rule has no application if the failure is explained, for example, by the absence of the witness coupled with a reasonable explanation for not compelling attendance by subpoena, or by illness or some other availability.
The significance of the inference depends on the closeness of the relationship of the absent witness with the party who did not call the witness. Considerable significance may attach if the absent witness is either the party or a senior executive of a corporate
party closely involved in the circumstances in question and present during the hearing of the case.
The rule provides that an inference may be drawn in certain circumstances not that such an inference must be drawn.
- The rule permits an inference that the untendered evidence would not have helped the party who failed to tender it and entitles the Commission to more readily draw any inference fairly drawn from the other evidence. But the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in evidence, or to convert conjecture and suspicion into inference.
- The rule only applies where a party is `required to explain or contradict’ something and this depends on the issues thrown up by the evidence in a particular case.
- The rule only applies to the failure to call a witness who is not a party to the proceedings if it would be natural for the party to call that witness, or the party might reasonably be expected to call the witness in question, or as Glass JA said in Payne v. Parker, `the missing witness would be expected to be called by one party rather than another’. His Honour said that this condition:
‘. . . is also described as existing where it will be natural for one party to produce the witness, or the witness would be expected to be available to one party rather than the other or where the circumstances excuse one party from calling the witness, but require the other party to call him, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him, or where the witness’ knowledge may be regarded as the knowledge of one party rather than the other, or where his absence should be regarded as adverse to the case of one party rather than the other. It has been observed that the higher the missing witness stands in the confidence of one party, the more reasons there will be for thinking that his knowledge is available to that party rather then to his adversary. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so. Evidence capable of satisfying this condition has been held to exist in relation to a party’s foreman; his safety officer; his accountant; his treating doctor.’
A party is not necessarily expected to call their own employees, though the more senior employee the more reason for concluding that the employee’s knowledge is available to his or her employer rather than any other party.
- The evidence of the missing witness must be such as would have elucidated the matter. In Payne v. Parker Glass JA said:
‘. . . according to Wigmore the . . . condition is fulfilled where the party or his opponent claims that the facts would thereby be elucidated. Under other formulations, the condition is made out when the witness is presumably able to put
a true complexion on the facts, might have proved the contrary, would have had a close knowledge of the facts, or where it appears that he had knowledge. I would think it insufficient to meet the requirements of the principle that one party merely claims that the missing witness has knowledge, or that, upon the evidence, he may have knowledge. Unless, upon the evidence, the tribunal of fact is entitled to conclude that he probably would have knowledge, there would seem to be no basis for any adverse deduction from the failure to call him.’
[103] Section 591 of the Act provides that the Commission is not bound by the rules of evidence and procedure and, pursuant to s.590, the Commission ‘may inform itself in relation to any matter before it in such manner as it considers appropriate’. Further, s.577(a) provides that the Commission must perform its functions and exercise its powers in a manner that ‘is fair and just’. As the ‘rule’ in Jones v Dunkel is fundamentally concerned with issues of fairness the Commission will give consideration to its application in an appropriate case. We adopt the observations made in Tamayo.
[104] A breach of the rule in Jones v. Dunkel may lead to the drawing of an adverse inference. The inference that may be drawn is ordinarily an inference that the uncalled evidence would not have helped the party’s case: not an inference that the uncalled evidence would have been positively unfavourable to the party’s case or positively favourable to the opposing party’s case. A breach of the rule in Jones v. Dunkel may also result in a ready acceptance of the opposing party’s evidence on the fact in question. However, a breach of the rule does not automatically prevent a finding being made that is favourable to the party who has failed to call relevant evidence on the question: other evidence may properly support the finding notwithstanding such failure.
[Emphasis added/Footnotes omitted]
[89] There were four potential witnesses who would have been able to give evidence for the Respondent. At the time of the Hearing there was no suggestion that any of the four potential witnesses were no longer employed by the Respondent, and it is clear that each witness held a senior role with the Respondent and were involved with the investigation of the Incident. It would have been natural, and it would be reasonably expected, for the Respondent to call those witnesses.
[90] Those four potential witnesses were the authors of the Report, Mr Hahn-Hill and Mr Harris, Mr Cavarra, the Chief Operating Officer of Coulson Aviation Australia, and Mr Nathan Soster, Director of Flight Operations Coulson Aviation Australia. Each would have been well placed to give evidence as to whether there had been appropriate engagement with the safety investigation.
[91] In the circumstances I readily draw the inference that the evidence of those four uncalled witnesses would not have assisted the Respondent.
[92] Against those inferences, the only evidence of the Respondent regarding valid reason is pure hearsay evidence of Mr Ceccanti as to what Mr Soster may have told him at various stages in the investigation. That evidence could be afforded little weight, particularly in the absence of Mr Soster, and goes no way to establishing valid reason……………………….”
Khouri v Coulson Aviation (Australia) Pty Ltd [2025] FWC 2819 delivered 19 December 2025 per Cross DP