This is some of what the Fair Work Commission’s general protections’ benchbook says about the reverse onus of proof which applies in general protections cases.
“Rebuttable presumption as to reason or intent
Section 361 – 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.
Under this section, where an application is made alleging that a person took action for a particular reason or with a particular intent, it is presumed that the person has taken the action for the alleged reason or with the alleged intent unless the person proves otherwise.
For example, if an application is made alleging that an employer dismissed an employee because the employee exercised a workplace right, once it is established that the dismissal took place and that the employee exercised a workplace right, it is presumed that the employer dismissed the employee because the employee exercised a workplace right unless the employer proves otherwise.
This section makes it easier than it otherwise would be to establish that a person took adverse action because the reason for taking adverse action usually lies entirely within the knowledge of the person who took the adverse action.
Rebuttable presumption as to reason or intent
How can the presumption be rebutted?
The court must consider why the adverse action was taken. This involves consideration of the person or decision-maker’s particular reason for taking the action and consideration of all the facts of the case at the time the decision was made, including those related to the adverse action.19F
The person who is seeking to rebut the presumption will need to provide evidence about the reason for taking the adverse action and/or the intention at the time of taking the adverse action. In the case of an organisation or corporation, the reason or reasons motivating the person(s) in the organisation or corporation who effectively made the decision to take the adverse action will be significantly relevant. In that context, it is important to identify the effective decision-maker(s) and their motives.20F21
To rebut means to refute by evidence or argument, to oppose something by proving the opposite.
It will ordinarily be difficult to rebut the statutory presumption if no direct evidence by the person or decision-maker(s) who took the adverse action is given.21F
Direct evidence of the decision maker’s state of mind, intent or purpose will be considered, and the credibility of the decision-maker will be examined.2F It will be up to the Court or Commission to consider whether the decision-maker’s evidence as to the reasons for taking the action is accepted. It is open to the other party to call evidence to demonstrate that the decision-maker’s real reason for taking the action was not what they said it was.
Direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer. However, direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. 23F
Related information
- Evidence
Consideration is not to be given to a decision-maker’s unconscious reasons. The decision-maker can only give evidence on reasons that they were conscious of. Unconscious reasons will not be considered because it would create an impossible burden to disprove.24F25
Rebuttable presumption as to reason or intent
Case examples
Presumption rebutted
Case reference
Employer discharged presumption by giving direct evidence of decision-maker
The decision-maker explained her reasons for taking adverse action against the employee. She provided convincing and credible explanations of why she took the steps that she did. She adhered to her explanation for calling on the employee to show cause why he should not be disciplined for circulating the email. She maintained her denials of having acted against the employee for any reason associated with his union membership, office or activities. The decision-maker’s evidence was accepted and the Court was satisfied she did not act for any proscribed reason. Board of Bendigo Regional
Institute of Technical and Further Education v Barclay (2012) 248 CLR 549.
Employer evidence supported by facts
An employee who was an office holder of the CFMEU was warned and threatened with dismissal for an unauthorised absence to attend the CFMEU’s board of management meeting. The respondent gave detailed evidence from individuals who took part in the decision-making process. The evidence was supported by documents and was based on the company’s leave policy. There was nothing to suggest any of the decision-makers had a problem with the employee attending the meeting, but were merely concerned that he was doing so without approved leave. No company witnesses were discredited and no objective facts contradicted their evidence. The onus was rebutted. Construction, Forestry, Mining and Energy Union v Bengalla Mining Company Pty Limited [2013] FCA 267. “