Evidence issues in general protections’ cases

The general protections prohibit certain actions by an employer, for example the taking of  adverse action against an employee, if the reason for doing so is prohibited by the Act. Proving that the action complained of was for a prohibited reason is often the main legal controversy in a case, and that is precisely what is the subject of the following dicta of the Federal Court of Australia in determining a general protections’ appeal from a decision of the Federal Circuit Court.

“The term “because”, as used in s 340 (and other provisions of the Fair Work Act) invites an inquiry as to the reasons why “adverse action” was taken.  The section is contravened if it can be said that the exercise of the workplace right “comprised ‘a substantial and operative’ reason, or reasons including the reason, for the employer’s action”:  General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 at 242 per Mason J (as his Honour then was) (Stephen and Jacobs JJ agreeing); Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 at [104], (2012) 248 CLR 500 at 535 per Gummow and Hayne JJ (“Barclay”).

Sections 360 and 361 of the Fair Work Act further address those circumstances where it is necessary to determine the “reason” why particular action was taken, such as s 340. Section 360 provides as follows:

Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

And s 361 imposes what has been described as a “reverse onus”.  That section provides as follows:

Reason for action to be presumed unless proved otherwise

(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.

(2)        Subsection (1) does not apply in relation to orders for an interim injunction.

Whether a respondent has discharged the “reverse onus of proof” is a question to be resolved at the end of a proceeding and upon consideration of the entirety of the evidence adduced:  Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, (2015) 238 FCR 273 at 279 (“Anglo Coal”).  Jessup J there observed:

[27]         In the context of a provision such as ss 340 and 352, the effect of s 361 is to reverse the legal onus in relation to the reason or reasons for which the adverse action was taken. That is to say, at the end of the trial of fact, the question will be whether the respondent has established, on the civil standard, that the action taken was not taken for a reason, or for reasons which included a reason, proscribed by the legislation. That question is to be answered by reference to all of the evidence which bears upon it. Section 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.”

Rudakova v Congregation of Religious Sisters of Charity of Australia trading as St Vincent’s Private Hospital, Sydney [2020] FCA 1222 delivered 26 August 2020 per Flick J”