One of the most controversial aspects of the general protections, and certainly one of the most challenging to explain and communicate to a client, whether employer or employee, is the issue in general protections’ cases of what evidence there needs to be established by an applicant to enliven the reverse onus of proof which is provided for by sec 361 of the Fair Work Act.
It is customary for employee clients to assume that if he or she is the victim of adverse action, it must follow that the reason for the employer’s conduct must logically be proscribed or prohibited by the Act; for example that it is improperly motivated by the employee having exercised a workplace right (sec 340), or by temporarily absent from work because the employee is temporarily absent from work because if illness or injury (sec 352) and so forth.
Most of my clients, employers and employees, struggle to comprehend that an applicant for relief under the general protections bears the initial onus or burden of establishing that one of the reasons (see sec 360) is proscribed or prohibited and that the fact that, for example, adverse action may have been taken (eg a dismissal or a demotion) unfairly or is unjustified does not constitute evidence of the same.
Although sec 361 of the Act provides that , except in proceedings for an interim injunction (sub-sec 361(2)), it will be presumed unless the person proves otherwise that the action alleged to have been taken was taken for the alleged reason or intent, the Federal Court and the Federal Circuit Court, encouraged by several decisions of the High Court, have persistently failed to recognize that the Act does not require an applicant to prove anything if the applicant’s case meets this very low threshold of mere allegation.
In the following unanimous decision of a Full Federal Court, chaired by the Chief Justice of the court, the practical implications of this are addressed.
Tracey J, with whom the Chief Justice and White J, wrote this
“There was no connection between the request to show the permit and the threat. They relied upon a passage in the reasons of Logan, Bromberg and Katzmann JJ in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at 335; [2015] FCAFC 25 at [192]where their Honours had said:
It is possible that the alleged reason may be negated by a respondent on the applicant’s own evidence. Where the connection between the reason alleged and the impugned conduct is so remote as to be fanciful, the onus may well be discharged in the absence of any evidence from the decision-maker.
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It will be a rare case in which the onus, imposed by s 361 of the FW Act, will be satisfied if evidence is not called from the person who took the adverse action and accepted by the Court as to the reason why the impugned action occurred: see General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 at 241 (Mason J); Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) (2012) 248 CLR 500 at 517; [2012] HCA 32 at [45] (French CJ and Crennan J).”
The danger for employees who are applicants of course is that as always there is danger in the witness box!
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88