The standard (not burden) of proof in general protections claims
The High Court has made it clear that this is not only an objective enquiry but also includes a consideration of any evidence, emanating from the decision maker concerned, as to why the particular decision in question was actually made.
Employers can take a particular action, against one of their employees, for a combination of reasons, some potentially illegal; some potentially not. The purpose of section 346 is to protect trade union officials from being unfairly targeted for exercising their legitimate industrial prerogatives. This purpose is emphasised by the provisions of section 361.
However, the section does not render the onus imposed on an employer to become heavier because the employee affected by the adverse action in question happens to be a member of an industrial association. Bendigo Institute v Barclay French CJ & Crennan J said as follows in respect of the onus created by section 361:
o “There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?
o This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.”
………………………………In my view, this submission requires the court to enter the realm of conjecture as to the subliminal or subconscious motivation of the interview panel. In Barclay Heydon J expressly prohibits the court from attempting to illicit any unconscious reason as to why an employer took the particular adverse action in question. His Honour rejected any notion that there could be a difference between “what actuated the conduct in question and what the person in question thought he or she was actuated by.”
In Short v Ambulance Australia the Full Court of the Federal Court (Dowsett, Bromberg and Murphy JJ) provided an erudite and useful summary, in respect of the application of section 361 and the authorities which relate to it, as follows:
o “Where adverse action is taken by one person against another, the task of a court in a proceeding alleging contravention of s 340 or s 351 is to determine why the person took the adverse action and to ask whether it was for a prohibited reason or reasons which included a prohibited reason (Barclay at ,  per French CJ and Crennan J). The question is whether a prohibited reason was a “substantial and operative” reason for the respondent’s action (Barclay at  per Gummow and Hayne JJ, see also  per French CJ and Crennan J). The relevant inquiry is therefore into the “particular reason” of the decision-maker for taking action (Barclay at  per French CJ and Crennan J,  per Gummow and Hayne JJ), which is a determination of fact to be made by the court taking account of all the facts and circumstances of the case and available inferences (Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd  HCA 41; (2014) 88 ALJR 980 at per French CJ and Kiefel J, Barclay at  per French CJ and Crennan J,  per Gummow and Hayne JJ).”
In my view, the obvious substantial and operative reason why the respondent took the action, which it did, was because the interview panel composed of Messrs Kokkoni, Heather and Norman ranked Mr Payne the fifth of the six candidates, whom they interviewed. In my view, the interview process was fair and transparent……………………
The construction of section 346 requires the court to enquire why adverse action was taken and determine whether it was because of an activity protected by the FWA. This determination must depend upon findings of fact, particularly the factors which motivated the person or persons who actually took the adverse action in question. As such, much of the court’s determination will involve an inquiry about thestate of mind of the relevant decision-maker.
In Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd French CJ and Kiefel J said as follows:
o “Section 346 does not direct a court to enquire whether the adverse action can be characterised as connected with the industrial activities which are protected by the Act. It requires a determination of fact as to the reasons which motivated the person who took the adverse action.”
BHP Coal was concerned with the actions of a decision-maker, who had terminated the employment of a person, also as in this case, a long standing union member, who had held up a sign bearing the wordscab during an industrial demonstration outside a workplace. It was the evidence of the decision-maker concerned that the use of the word scab, on the placard in question, offended a workplace conduct policy and the employer’s charter of values. On this basis, the employee was dismissed.
The High Court determined that although there was undoubtedly a connection between the termination and a protected industrial activity – the sign having been used in a workplace demonstration – that connection was not necessarily sufficient to found adverse action under section 346, as it was accepted that the reason for the dismissal was not for taking part in industrial activities per se.
In Sayed v Construction, Forestry, Mining & Energy Union  Perry J, after referring to BHP Coal and particularly that it was insufficient to found an action under section 346 on the basis of only aconnection between the protected activity and the adverse action, said as follows:
o “This difference between a “connection” and a “reason” may, with respect, be elusive. Possession of a protected attribute is clearly insufficient, and it may also be accepted that if the occasion for adverse action happens to coincide with manifestation of a protected attribute (such as political opinion or industrial activity), that is insufficient. If, however, more than this is meant by the use of the term “connection” then it seems to me as a matter of fact in a given case there may well be an overlap with a “reason” for the adverse action. So too the distinction between an employer not having to prove adverse action was “entirely disassociated” from a prohibited reason, but having to prove the prohibited reason was not a “substantive and operative” reason. Repeating that these will be questions of fact to be determined on the evidence in a particular case does not remove the difficulty of the somewhat fine distinctions being drawn in the authorities. With respect, they also illustrate the difficulties in paraphrasing, or moving away from, the statutory language which here relevantly requires that an employer prove action was not taken for reasons which “included” a prohibited reason.”
In my view, the current matter is not beset with the same degree of ambiguity or difficulty as in BHP Coal. In my view, the facts available to me are clear as to what was the state of mind of the relevant decision-makers. Messrs Kokkoni, Heather and Norman, on the basis of the interview process alone, decided that Mr Payne and Mr Klintberg were the least meritorious candidates for retention. Mr Meakin elected to accept their recommendation. Any connection between this decision and Mr Payne’s union activities is, in my view, purely fortuitous. It was not the reason for the decision.”
Payne v South Australian Water Corporation (SA Water) (2016) FCCA 288 delivered 26 February 2016