Although the Fair Work Commission is not bound to apply the rules of evidence and formality which are followed in the Australian criminal and civil courts, unfair dismissal cases are nonetheless conducted as adversarial rather than inquisitorial enquiries into the truth of particular matters and consequently the Commission requires certain basic levels of consistency as to the level of proof required to establish disputed facts. This is how it does this.
“In considering whether there is a valid reason for the Applicant’s dismissal, I am required to be satisfied on the balance of probabilities that he engaged in the alleged misconduct or in misconduct to which dismissal was a valid, sound and defensible response. I must be conscious of the gravity of the allegations and the ramifications for the Applicant if they are made out. However, the standard of proof does not change and the issues in dispute must be determined on the balance of probabilities. Put another way, it must be more probable than not that the Applicant engaged in the relevant misconduct. Where the case is inferential the cumulative effect of the evidence must be considered. Proof of any fact on the balance of probabilities can be established by circumstantial evidence – that is by proof of primary or intermediate facts from which a further fact can be inferred. 21 In United Group Resources Pty Ltd and Others v Calabro and Others (No 5)22 McKerracher J set out the principles in civil cases in relation to finding facts by inference, as follows:
“A fact may be proved by inference if according to common experience the fact is the more probable inference from the unexplained primary facts. Certainty is never possible and is not required. All that is necessary is that circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought. For the purpose of considering whether this test is met, the Court must consider the accumulation of the evidence. It is appropriate not only to evaluate each of the factual contentions separately but also to form an appreciation of the overall effect of the whole of the evidence, by considering the weight which is to be given to the united force of all of the circumstances together. The Court may draw an inference from a combination of intermediate facts, even if none of them in isolation would support the inference.” 23 (citations omitted).”
Mellios v Qantas Airways Limited (2020) FWC 2989 delivered 2 July 2020 per Asbury DP