General protections; the rebuttable presumption

“The question of why an employer took adverse action against an employee or, for that matter against a prospective employee, is a question of fact:  see Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [41]. To answer the question it is necessary to consider the reasons that actuated the decision-maker:Barclay at [42]. Direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question:Barclay at [44]. Of course, the court is not bound to accept such evidence. It may be unreliable because it is contradicted by other evidence given by the decision-maker or “because other objective acts are proven which contradict the decision-maker’s evidence”. Where, however, direct evidence is given by the decision-maker which the primary judge accepted as reliable, that evidence is capable of discharging the employer’s burden of proof: Barclay at [45].”

Herbert v Star Aviation Pty Ltd [2019] FCAFC 136 (14 August 2019) (Katzmann, Colvin and Thawley JJ)