This extract from an appeal in the Fair Work Commission deals with some interesting legal issues about the onus of proof in such cases.
“Consideration
[10] The contention that the Deputy President erred by not conducting an inquisitorial proceeding is not arguable. A Full Bench of the Commission recently confirmed that unfair dismissal proceedings are adversarial and not inquisitorial:3
“More generally, we observe that it is not the Commission’s task to run the case of a party. The Commission’s responsibility is to conduct a fair hearing. This includes intervening only to the extent of ensuring that a self-represented party knows what is required of them, is directed to the matters in issue (and only the matters in issue), has a fair opportunity to present their case and test that of the other party, and to have its case understood. On balance, those thresholds were met in this matter.
We also observe that unfair dismissal proceedings, whether conducted by conference or hearing, are adversarial, not inquisitorial. Whilst under s 590(2) the Commission has power to inform itself as it sees fit (including by requiring a person to attend or provide documents) inter-partes litigation such as unfair dismissal proceedings are not general inquiries into workplace conduct or culture, or forums to ventilate broader concerns.”
[Footnote omitted]
[11] The Deputy President concluded her decision as follows:
“The Applicant has not discharged his onus to demonstrate that he had no real, effective or meaningful option but to resign in these circumstances. As a result, I am not satisfied that he was dismissed within the meaning of the Act. This application is therefore dismissed.”
[12] In Teterin v Resource Pacific Pty Ltd [2014] FWCFB 4125, (2014) 244 IR 252 the Full Bench explored the notion of “onus of proof” in Commission proceedings. The Full Bench distinguished between a legal onus and an evidentiary onus, particularly for a statutory tribunal that is required to be “satisfied” about matters before exercising a discretion and linked the evidentiary onus to the party bearing the risk of failure. The Full Bench said at [25]-[27]:
“In considering the appellants’ submissions concerning onus, it is important to distinguish between a legal onus and an evidentiary onus. A legal onus, or burden of persuasion, “is the obligation of a party to meet the requirement of a rule of law that a fact in issue be proved” to the requisite standard of proof, with such a party bearing the risk of non-persuasion as to the fact in issue. The limited role of the legal onus in court proceedings is explained in Cross on Evidence in the following way:
Burdens of persuasion affect the outcomes only of cases in which the trier of fact thinks the plaintiff’s and the defendant’s positions equi probable. Burdens of persuasion are, in other words, tie-breakers. If the trier of fact, having heard all the evidence, comes to a definite conclusion, there is no occasion to invoke a burden of persuasion.
The evidentiary onus was described by the High Court in Sidhu v Van Dyke “in its strict legal connotation” as being “the burden of adducing or pointing to sufficient evidence
to raise an issue for determination by the court”. It has also been referred to as the burden of adducing evidence.
In most of the decisions relied upon by the appellants to support the proposition that in the case of jurisdictional objections based on s 389 it will be the respondent who bears the onus, it is apparent that an evidentiary onus was being referred to…”
[Footnotes omitted]
[13] Although the Deputy President refers to an “onus to demonstrate” certain matters it is clear in context that she was referring to the evidentiary burden carried by the Mr Liebenberg to provide sufficient evidence upon which the Deputy President could have been “satisfied” that he was dismissed.
[14] In the proceedings it fell to Mr Liebenberg to persuade the Deputy President that he did not resign voluntarily and to establish that his employer forced his resignation.4 The Deputy President clearly explained the reasons for finding that IP Australia did not intend to end the employment relationship and for finding that resignation was not the probable result of IP Australia’s conduct. Mr Liebenberg has not demonstrated an arguable case of error in that approach.
[15] Nor is it arguable, in our view, that the Deputy President erred in assessing what Mr Liebenberg refers to as “reportable conduct” by IP Australia. We agree with the Deputy President’s finding that it was not strictly necessary to delve into Mr Liebenberg’s assertions of unlawful conduct. In any event, as IP Australia submitted on appeal, evidence IP Australia relied upon to refute Mr Liebenberg’s claims was not contested by Mr Liebenberg via cross- examination. An arguable case of appealable error is not disclosed in the Deputy President’s approach to Mr Liebenberg’s claims.
[16] The Deputy President’s finding that Mr Liebenberg had other options available rather than resigning was clearly open on the evidence. Mr Liebenberg’s appeal submissions specifically refer to him pursuing complaints in two separate forums. Both types of complaint could have been pursued while Mr Liebenberg remained employed. IP Australia took several steps to try and maintain the employment relationship after Mr Liebenberg initially resigned in writing on 6 February 2024. IP Australia allowed Mr Liebenberg to rescind his resignation and then to take an extended period of leave. It appears Mr Liebenberg then subjectively formed the view that his employment relationship with IP Australia had to end. Mr Liebenberg’s subjective view does not establish IP Australia’s objective intention was to end the employment relationship. Mr Liebenberg’s subjective view also does not establish resignation was the probable result of IP Australia’s conduct based on an objective assessment.
[17] The Deputy President correctly identified and applied the legal tests concerning constructive dismissal in the Decision. Mr Liebenberg’s appeal is essentially a request for a Full Bench to decide that he was forced to resign based on the same arguments he made before the Deputy President. It is not appropriate for permission to appeal to be granted for that purpose.
[18] For the purposes of s.400(1) of the FW Act, we do not consider that:
(a) there is a diversity of decisions at first instance so that guidance from an appellate body is required of this kind;
(b) the appeal raises issues of importance and/or general application;
(c) the decision at first instance manifests an injustice, or the result is counter intuitive; or
(d) the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
[19] Given Mr Liebenberg has not identified an arguable case of error in the Decision, we do not consider that it would be in the public interest to grant permission to appeal and s.400(1) therefore requires that permission to appeal not be granted.
Conclusion
[20] Permission to appeal is refused.”
Appeal by Liebenberg v IP Australia [2024] FWCFB 460 delivered 12 December 2024 per Millhouse DP, Easton DP and Crawford C