General protections cases and the reverse onus of proof

The following extract from a recent decision of the Full Court of the Federal Circuit Court contains and excellent analysis of the practical operation of the reverse onus of proof in general protections’  cases.

“CONSTRUCTION OF SS 351(1), 360 AND 361

The guide to Pt 3.1 of the Fair Work Act in s 334 states that the Part provides general workplace protections and that, among others, “Division 3 protects workplace rights, and the exercise of those rights” and “Division 5 provides other protections, including protection from discrimination”. Relevantly, the prohibitions in Pt 3.1 against an employer taking adverse action against an employee in s 340 (in respect of workplace rights generally), and specifically in s 346 (in respect of industrial activity), s 351 (in respect of discrimination) and s 352 (in respect of dismissal for illness and injury) are enlivened if the employer takes the particular adverse action “because” a fact or circumstance obtains or has occurred.

Section 346, for example, which is in Div 4, relevantly proscribes an employer from taking adverse action, such as dismissal, against an employee “because” the employee is or was an official or member of an industrial association (s 346(a)) or engaged, is engaging or proposes to engage in industrial activity (s 346(b)). And s 351(1), which is in Div 5 and is headed “Discrimination”, relevantly proscribes an employer from taking adverse action against an employee or prospective employee “because” of the particular employee’s specific characteristics, including physical or mental ones, his or her sexuality, beliefs or political opinion.

Section 361(1) creates a presumption in an application under Pt 3-1 that, where an employee alleges that the employer took, or is taking, adverse action for a particular reason, and “taking that action for that reason or with that intent would constitute a contravention of this Part”, “the action was or is being taken for that reason or with that intent unless the person proves otherwise”. Importantly, s 360 provides:

360     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.

In Barclay 248 CLR 500, the High Court considered the operation of the adverse action provisions in the context of a claim under s 346 that an employer had taken adverse action against an employee “because” he was an officer of an industrial association and had engaged in industrial activity.

The High Court observed that the Parliament intended ss 360 and 361 to provide a balance between the parties to a workplace dispute by, first, establishing a presumption in favour of an employee who alleges that an employer had taken, or is taking, adverse action against him or her because of a particular circumstance or fact of the kind specified in any of ss 340, 346, 351 or 354 and, secondly, enabling the employer to rebut that presumption (Barclay 248 CLR at 523 [61] per French CJ and Crennan J, 535–536 [103]–[105], 542 [127]–[128] per Gummow and Hayne JJ). The presumption and onus that ss 360 and 361(1) create are necessary because the employee cannot know or prove what was in the decision-maker’s mind when he or she took the adverse action. The court must enquire into, and make findings about, the mental processes of the decision-maker for taking the adverse action complained of (at 517 [44]–[45], 523 [62], 534–535 [101], and per Heydon J at 544 [140]).

Accordingly, the employer or decision-maker acting on its behalf who took the alleged adverse action must prove, as a fact, that none of his or her reasons for that action included as a substantial and operative factor any reason or intent that the Act proscribed him or her from having: Barclay 248 CLR at 522–523 [56]–[59] per French CJ and Crennan J, 535 [104] per Gummow and Hayne JJ, 544 [140] per Heydon J. As French CJ and Crennan J held (Barclay 248 CLR at 516–519 [41]–[44]), the Court must determine the question of fact, namely “why was the adverse action taken?” French CJ and Crennan J explained (248 CLR at 523 [61], [62] and see too per Heydon J at 547 [148]):

Central to the respondents’ argument on this appeal was the contrary and incorrect view that Mr Barclay’s status as an officer of an industrial association engaged in lawful industrial activity at the time that Dr Harvey took adverse action against him meant that Mr Barclay’s union position and activities were inextricably entwined with the adverse action, and that Mr Barclay was therefore immune, and protected, from the adverse action. If accepted, such a position would destroy the balance between employers and employees central to the operation of s 361, a balance which Parliament has chosen to maintain irrespective of the fact that the protection in s 346(b) has a shorter history than the protection in s 346(a). That balance, once the reflex of criminal sanctions in the legislation, now reflects the serious nature of the civil penalty regime. Speaking more generally, that balance is a specific example of the balance of which Alfred Deakin spoke as being necessary for an effective conciliation and arbitration system.

Secondly, it is a related error to treat an employee’s union position and activity as necessarily being a factor which must have something to do with adverse action, or which can never be dissociated from adverse action. It is a misunderstanding of, and contrary to, [General Motors-Holden’s Pty Ltd v Bowling [(1976) 136 CLR 676] to require that the establishment of the reason for adverse action must be entirely dissociated from an employee’s union position or activities. Such reasoning effectively institutes an interpretation of the relevant provisions indistinguishable from that of Isaacs J in Pearce, which was rejected in Bowling. The onus of proving 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.

(Emphasis added.)

Gummow and Hayne JJ (248 CLR at 540 [118], 541 [124]–[126], 543 [134]) and Heydon J (at 546 [145]–[147]) rejected the argument that, in answering the question “Why was the adverse action taken?” the court could take into account any “unconscious” state of mind of the decision-maker or employer.

In BHP Coal 253 CLR 243 at 252–253 [22] French CJ and Kiefel J rejected as erroneous the reasoning of the primary judge (Jessup J) who had posited that the employer (or decision-maker) has to establish, under s 361(1), that no part of his or her reasons included the employee’s engagement in industrial activity (and see also at 268–269 [90]–[93] per Gageler J). Their Honours said:

The primary judge then went on to consider whether Mr Doevendans’ conduct constituted an industrial activity in the relevant respects. The only inference which can be drawn from this additional reasoning is that, because the adverse action was based upon the sign which Mr Doevendans held and waved, this activity must be taken as one of the reasons for the action. That is to say no more than that the adverse action had a connection, in fact, to the industrial activity. That connection may necessitate some consideration as to the true motivations of Mr Brick, but it cannot itself provide the reason why Mr Brick took the action he did. That inquiry was concluded by his Honour’s earlier findings. His Honour, in effect, wrongly added a further requirement to s 361, namely that the employer dissociate its adverse action completely from any industrial activity.

In essence, in this passage, French CJ and Kiefel J applied the test that, even though Mr Doevendans’ conduct amounted to his engaging in industrial activity within the meaning of s 346(b) and that conduct was “a reason” for the decision-maker, Mr Brick, acting as he did, the conduct was not a substantial and operative reason in Mr Brick’s mind when he took the adverse action. That conclusion was consistent with the reasons in Barclay 248 CLR at 522–523 [56]–[59], [62] and especially 535 [104] and 544 [140], based on the trial judge’s unchallenged findings of fact.

In Endeavour Coal 231 FCR 150 at 160–161 [32] (and see too at 164–165 [47]), Jessup J (who, with Perram J constituted the majority) explained the principle established in Barclay 248 CLR 500 and BHP Coal 253 CLR 243 as follows:

The “connection” which was held not to be sufficient in BHP Coal was between the adverse action taken by the employer and the industrial activity in which the employee had engaged. It was not between two different characterisations of the conduct of the employee, in that case, as a contravention of the employer’s conduct policy and as participation in industrial activity. As French CJ and Kiefel J made clear, if adverse action was taken because the conduct involved such a contravention, it did not become a breach of s 346 merely because the conduct was, at the same time, participation in industrial activity. The existence of such a “connection” was insufficient. What was necessary was that the actual reason of the decision-maker, in his or her own mind, be the employee’s participation in industrial activity. To see their Honours’ reasons in this way is, in my view, to recognise the consistency of those reasons with the statements of principle contained in the reasons of Gageler J in the same case. Those statements represent the law after Barclay and BHP Coal .

(Emphasis added.)

Perram J came to the same conclusion.  He gave the example that, while a judge in giving reasons for his or her decision will have regard to the unsuccessful party’s submissions as an important part of arriving at that decision, those submissions will not be the reasons that are substantial and operative in why the judge made the decision: Endeavour Coal 231 FCR at 173 [91].”


Rumble v The Partnership Trading as HWL Ebsworth Lawyers [2020] FCAFC 37 delivered 13 March 2020 per Rares, Flick and Katzmann JJ