General protections; what is the reason for the action?

Most general protections cases involve allegations to the effect that the action complained of was for a prohibited reason or reasons. Often the court will be required to carefully scrutinize the evidence and make findings of inferential even on occasion slightly speculative fact to identify multiple reasons for the taking of the action. Some reasons may be more material than others. The High Court has settled upon the “substantial and operative” reason as the primary determinant.

“A contravention of s 340(1) is made out if “a substantial and operative” reason for action is prohibited:  cf. Board of Bendigo Regional Institute of Technical and Further Education [2012] HCA 32, (2012) 248 CLR 500 at 535. Gummow and Hayne JJ there concluded in respect to s 346 of the Fair Work Act:

[104] … An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised “a substantial and operative” reason, or reasons including the reason, for the employer’s action and that this action constitutes an “adverse action” within the meaning of s 342.

See also:  Kennewell v MG & CG Atkins [2015] FCA 716 at [51] per Tracey J; Wroughton v Catholic Education Office Diocese of Parramatta [2015] FCA 1236 at [8] per Flick J.”

Australian Building and Construction Commissioner v Hall [2017] FCA 274 delivered 22 March 2017 per Flick J