Unfair dismissal and Jones v Dunkel

One of the rules of evidence used in Australia courts which can sometimes be seen to be adopted in the Fair Work Commission is the rulein Jones v Dunkel.

 

  1. One issue raised by the Applicant that could have impacted upon the above decisions regarding preferred evidence and below decisions regarding factual findings was a submission raised by the Applicant regarding the rule in Jones v 131 The Applicant submitted that I should draw a Jones v Dunkel inference that the Respondent’s failure to call evidence from its employees (including Ms Gale, Ms O’Cass, Ms Bassick, and others) as well as from Ms Gray indicated that their evidence would not have assisted the Respondent’s case. Similarly, the Applicant did not call evidence from various employees, including Mr Everson, whose evidence may have been able to assist the Applicant’s case concerning the conduct of Ms Gray and the complaints that the Applicant had raised against her.
  2. In Xiu Zhen Huang v Rheem Australia Pty Ltd132 a Full Bench of the Commission summarised the rule in Jones v Dunkel in the following terms:

 

“The rule in Jones v. Dunkel is a rule of commonsense and fairness in relation to the fact finding process. The rule was considered at length by a full bench of the Commission in Tomayo v Alsco Linen Service Pty Ltd and we respectfully endorse that analysis. The rule is breached by the unexplained failure of a party to call evidence on a fact in issue that the party might reasonably have been expected to call. It is most usually invoked in relation to the unexplained failure of a party to call a witness who is in that party’s ’camp’. However, the rule also extends to an unexplained failure to tender documents within the party’s control. A breach of the rule in Jones v. Dunkel may lead to the drawing of an adverse inference. The inference that may be drawn is ordinarily an inference that the uncalled evidence would not have helped the party’s case: not an inference that the uncalled evidence would have been positively unfavourable to the party’s case or positively favourable to the opposing party’s case. A breach of the rule in Jones v. Dunkel may also result in a more ready acceptance of the opposing party’s evidence on the fact in question. However, a breach of the rule does not automatically prevent a finding being made that is favourable to the party who has failed to call relevant evidence on the question: other evidence may properly support the finding notwithstanding such failure.” [citation omitted] 133 

 

The failure of a party to call a witness or produce documents ‘may’, not ‘must’, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted a party’s case. The Applicant did not take me to the particular facts in issue that it alleged that the evidence of various employees of the Respondent could attest to. The potential witnesses were witnesses to events that were largely not the subject of factual contest, in circumstances where the Applicant or witnesses for the Respondent had made appropriate admissions or concessions in evidence regarding relevant events, their conduct or the conduct that they witnessed or where evidence was led from both the Applicant and the Respondent on the events that they were party or witness to. Accordingly, I decline to draw an inference that their evidence would not have assisted the Respondent’s case. In relation to Ms Gray, I note that neither the Applicant or the Respondent filed any evidence from her, nor sought an order from the Commission compelling her attendance. I do not draw any inference from the actions of either party in regard to this. I do not draw any inference from the decision of the Applicant and Respondent not to call evidence regarding whether rumours were circulating regarding the Applicant from February 2023. I accept that it was the Applicant’s honest belief that this was occurring and that this influenced his conduct. 

 

Ashburner v St Marys Rugby League Club Ltd (2024)delivered 30 January 2024 per Grayson DP