The general protections’ rebuttable presumption of proof

The general protections of the Fair Work Act are a reasonably scary proposition for companies which are sued for breaching them because there is a rebuttable but real presumption that the reason for the taking of the adverse action is unlawful unless the contrary is established by evidence. Ordinarily this must be established by oral testimony from the person or persons who made the decision.

In a 1976 case under a predecessor of the Fair Work Act  General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 the High Court found that the decision to dismiss an employee was made by the company’s Melbourne-based directors, in consultation with South Australian staff. The employee alleged that he was dismissed because of his position with the union. During the hearing the company only provided evidence from the South Australian staff.

The failure to provide evidence from the decision-makers meant that the company failed to rebut the presumption that they dismissed the employee because of his involvement with the union.

General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605