General protections cases; what activates the reverse onus of proof?

There is some controversy about the level of probative value an applicant in a general protections case must satisfy before the reverse onus of proof is invoked. In this recent interesting decision of the Federal Circuit Court a judge was prepared to accept it would seem what he described as a “prima facie case” as to which there is much legal principle.

In other cases it has been possible to discern a lesser standard than that which we are accustomed to understanding as a “prima facie case” in civil proceedings.

“The circumstances raise a prima facie case that the respondent took the adverse action it did against Ms Tahi because of her need to care for her sick children or her need to take time off work to care for those children.

Once s.361 is engaged, the respondent must demonstrate that:

  1. a)in respect of s.340(1), it did not take adverse action against Ms Tahi becauseshe:
  2. i)had a workplace right; or
  3. ii)had, or had not, exercised a workplace right or;

iii)         at any time proposed or proposed not to exercise a workplace right; and

  1. b)in respect of s.351(1), it did not take adverse action against Ms Tahi becauseof her family or carer’s responsibilities.”

Tahi v Oxican Pty Ltd (2018) FCCA 3722 delivered 13 December 2018 per Jarrett J