Evidence issues in general protections cases

What follows is an excellent summary of the reverse onus of proof which applies in general protections cases, extracted from a very recent decision of the Federal Circuit Court.

 

“Division 7 of Pt 3-1 then sets out rules for the purposes of establishing contraventions under that Part. In particular, for the purposes of Pt 3-1, a person is to be regarded as taking action for a particular reason if the reasons for the action include that reason: Act, s 360. Further, s 361(1), Reason for action to be presumed unless proved otherwise, relevantly provides:

(1) If:

(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b) taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

  1. The purpose of s 361 is to cast upon a respondent the onus of proving that which is peculiarly within its knowledge.[15] It is well recognised that it may be extremely difficult to displace the statutory presumption in s 361 where no direct testimony is given by the decision-maker acting on behalf of the employer.[16] By contrast, in some cases, the testimony of a decision-maker may properly be regarded as providing weighty considerations in the evaluation of whether the presumption has been displaced. Such a conclusion may well depend upon the manner in which the evidence was given. Equally, it has been accepted that s 361 “does not impose upon the respondent concerned the onus of calling any and every piece of evidence that might arguably influence the answer to the question of reasons or intent. The section is not, in other words, concerned to impose upon the respondent a continuing, unchanging, evidentiary onus with respect to that question.”[17] Whether the onus has been discharged will depend upon an assessment of all of the facts, including an assessment of the decision-maker’s evidence.
  1. When determining why a person took particular action, the focus of the court’s inquiry is upon the reasons of the decision-maker at the time the adverse action was taken.[18] In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd,[19] Gageler J stated that “Where the adverse action taken is in consequence of a decision made by a responsible individual within a corporation, the existence or non-existence of a particular reason as an operative and immediate reason for taking that adverse action turns on an inquiry into the mental processes of that individual”: see also Construction Forestry Mining Energy Union v Endeavour Coal Pty Ltd;[20] Rumble v Partnership (t/as HWL Ebsworths).[21]
  1. Since the focus is upon the reasoning process that led to the ultimate decision, the scope of the inquiry will differ between those cases in which one person represents the repository of the decision-making process from those in which “the reasoning process is dispersed though an assessment process involving a number of persons.” In the latter category of case, the court is called upon to “examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision”: Construction Forestry Mining Energy Union v Clermont Coal Pty Ltd.[22] There Reeves J, accepted that the inquiry did not involve some roving search in the minds of employees or an evaluation of the unconscious reasoning of a decision maker. Rather,

. . . , 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.

Reeves J considered that in cases where the decision making was dispersed across a number of persons, a necessary anterior inquiry involved identification of those who had a material effect on the reasoning process to be followed by an inquiry to examine the reasoning employed by those persons to ascertain whether it was affected by a prohibited reason that was a substantial and operative reason for the taking of the adverse action.

  1. As the text of par 361(1)(a) makes clear, for the reverse onus of proof to be engaged in a proceeding, it must be alleged that a person took, or was taking, action for a particular reason, or with a particular intent, and that the taking of that action for that reason or intent would constitute a contravention of Pt 3-1 of the Act.
  1. Liability under s 340(1) of the Act depends upon a finding that a person had taken adverse action against an employee because the other person has a workplace right. The question why a person acted in a particular way is a question of fact. Within the scope of s 340(1) of the Act, it should be recognised that the section neither refers to the term ‘objective’, nor ‘subjective’. It has been recognised that the adoption of either term as delimiting the scope of the inquiry posed by s 340(1) is likely to mislead. Further, an inquiry which is pursued by reference to the unconscious reasons for why a person had acted in a particular way is also erroneous.[23]
  1. Insofar as it may be suggested that an employer must establish that the existence of a workplace right played no part in the decision-making, this overstates the position. In General-Motors Holden Pty Ltd v Bowling,[24] Mason J, with whom Gibbs, Stephen and Jacobs JJ agreed, held:

The onus of proving that the fact that the employee held the position was not a substantial and operative factor in the dismissal is to be discharged according to the balance of probabilities and is not to be made heavier by any presumption that if an employee who is dismissed for disruptive activities happens to be a shop steward the latter circumstance must have had something to do with his dismissal.

As it may be applied to s 361 of the Act, this reasoning has been approved in Barclay.

  1. Relatedly, a view in earlier authority that such considerations must not enter in any way into a person’s reasons for taking action has been disapproved.[25] Instead, the onus of proving, for example, “that an employee’s union position and activity was not an operative factor in taking adverse action is to be discharged on the balance of probabilities in the light of all the established evidence.”[26] The adoption of this approach serves to underline the error in reasoning from an assumption that, as relevant to this proceeding, where a complaint or inquiry had been made, it must have had something to with the adverse action.[27] Coincidence does not establish liability. Instead, the question of fact, to be decided in light of all of the evidence and available inferences, is whether a proscribed reason for, or intent in, taking certain action had been a substantial and operative factor for the taking of adverse action.
  1. Bare declarations that action was taken for an ostensibly innocent reason will not suffice to displace the burden of proof. In the same vein, it would generally be very difficult to displace the statutory presumption if testimony was not adduced from the decision-maker of the actual reasons as to why the impugned action was taken: Barclay.[28]
  1. To adapt the reasoning in Barclay, a person may be found to have taken adverse action against an employee where it is concluded that a substantial and operative reason for the employer’s action was because the employee had a workplace right or proposed to exercise such right.[29] While the plain purpose of s 361 is to throw onto an employer “the onus of proving that which lies peculiarly within its knowledge”, [30] the central questions to be answered are why a person took particular action and whether it was for a prohibited reason (or for reasons which included a prohibited reason).[31] In BHP Coal,[32] Hayne J held that the two underlying questions that were required to be determined were: “Why was adverse action taken? Did the employer show that the reasons for acting did not include a prohibited reason?” See also State of Victoria (Office of Public Prosecution) v Grant;[33] Construction, Forestry Mining and Energy Union v Endeavour Coal Pty Ltd;[34] Western Union Business Solutions (Australia) Pty Ltd v Robinson;[35] Rumble v Rumble v Partnership (t/as HWL Ebsworths).[36] In Rumble,[37] Flick J stated that “the mere fact that conduct of an employee may be ‘inextricably entwined’ with the taking of adverse action is “to say no more than that the adverse action had a connection . . . to the industry activity” and that what is “necessitated” is consideration to the “true motivations” of the employer. Citing Gageler J in BHP Coal,[38] his Honour held, however, that to escape liability, an employer must “prove that the act or omission having the character of a protected industrial activity played no operative part in its decision.”
  1. From these authorities, the following propositions may be stated:

(1) the court’s task is to determine, on the balance of probabilities, why an employer took adverse action against the employee, and to ask whether it was for a prohibited reason, or reasons, which included a prohibited reason;

(2) where adverse action is taken as a result of a decision made by an individual within a corporation, the identification of the operative reasons for taking the adverse action turns on an inquiry into the mental processes of the relevant individual;

(3) where the decision-making process is dispersed though a process involving a number of persons, an examination is required of the reasoning process employed “by each person whose involvement had a material effect on the ultimate decision”;

(4) the object of the inquiry is to identify the actual reasons of that person which reasons are to be determined from all of the facts and circumstances and inferences properly drawn from them;

(5) in light of s 361, direct evidence from the individual responsible for the employer’s action as to his or her reasons for that action (which may properly include positive evidence that the action was not taken for a prohibited reason), would ordinarily be expected;

(6) when determining why a person took particular action, the court is to focus upon the reasons of the decision-maker at the time the adverse action was taken;

(7) in assessing such statements against all of the facts and circumstances, the central question to be determined is one of fact: “Why was the adverse action taken?” This determination is concerned with the actual reason or reasons which motivated the decision-maker – not whether some proscribed reason had subconsciously influenced the decision-maker – and no such enquiry should be made;

(8) 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”;

(9) even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons, other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable. If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361;

(10) once all of the reasons for the adverse action are identified, the question which remains to be answered is whether one of the operative reasons of substance for the adverse action included a prohibited reason.”

Boyd v Glenvill Pty Ltd [2021] FCCA 265 delivered 23 February 2021 per Kelly J