Unfair dismissal case procedures

Although unfair dismissal cases in the Fair Work Commission do not proceed in compliance with Australia’s laws of evidence, the single biggest error made by unrepresented applicants is the failure to address evidence issues. Although the case an extract from which I am publishing today is a general protections case in the Federal Court, the issue of evidence and probative value is still very important for cases in the Commission.

“The unexplained failure of a party to give evidence or call witnesses may lead to an inference that the missing evidence or absent witness would not have assisted that party’s case:  Jones v Dunkel (1959) 101 CLR 298 esp. at 308 (Kitto J), 312 (Menzies J) and 321 (Windeyer J). The Court make take that circumstance into account in deciding whether to accept particular evidence that relates to a matter on which the absent witness could have spoken: JD Heydon, Cross on Evidence (12th ed., Lexis Nexis Butterworths, 2019) at [1215], citing O’Donnell v Reichard [1975] VR 916 at 929 (FC).  It does not matter that the party who could have called the evidence does not bear the burden of proof.  Moreover, evidence the witness might have contradicted can be accepted more readily:  Jones v Dunkel at 312 (Menzies J). And any inference favourable to the other party for which there is a foundation in the evidence can more comfortably be drawn: Jones v Dunkel at 308 (Kitto J); at 312 (Windeyer J).

  1. As Hodgson JA explained in Ho v Powell (2001) 51 NSWLR 572 at [16], Jones v Dunkel was a particular application of the principle in Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970 that “[a]ll evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”.
  2. While a Jones v Dunkel inference cannot fill gaps in the evidence and cannot convert conjecture or suspicion into inference, if the inference is drawn it can “weigh the scales, however slightly, in favour of the opposing party”:  Adler v Australian Securities and Investments Commission [2003] NSWCA 131; 21 ACLC 1810; 46 ACSR 504; 179 FLR 1 at [649] (Giles JA, Mason P and Beazley JA agreeing at [1] and [2] respectively).
  3. There are three conditions for the operation of the rule:  first, that it might be expected that the evidence from the person would be adduced by the party; second, that the evidence would elucidate a particular matter; and third, that the failure of the person to give evidence is unexplained:  Payne v Parker [1976] 1 NSWLR 191 at 201–2 (Glass JA), Musa v Alzreaiawi [2021] NSWCA 12 at [79]–[80] (Gleeson JA, Bell P and Macfarlan JA agreeing at [1] and [2] respectively). A Jones v Dunkel inference will not be drawn if there are facts which disclose that the reason for not adducing evidence from the person was not that the party “fears to do so”:  Fabre v Arenales (1992) 27 NSWLR 437 at 445–6 (Mahoney JA, Priestley and Sheller JJA agreeing at 454). As Mahoney JA explained in that case at 449‑450:

The significance to be attributed to the fact that a witness did not give evidence will in the end depend upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so. But there are circumstances in which it has been recognised that such an inference is not available or, if available, is of little significance. The party may not be in a position to call the witness. He may not be sufficiently aware of what the witness would say to warrant the inference that, in the relevant sense, he feared to call him. The reason why the witness is not called may have no relevant relationship to the fact in issue:  it may be related to, for example, the fact that the party simply does not know what the witness will say. A party is not, under pain of a detrimental inference, required to call a witness “blind”.

  1. The explanation must be established by evidence; unavailability of witnesses or lack of recollection, for example, is not to be presumed from the passage of time:  West v Government Insurance Office (NSW) (1981) 148 CLR 62 at 70 (Murphy J); Cross on Evidence at [1215]. No evidence was adduced in the present case to account for the absence of evidence from any of the other massage therapists, the receptionists or Mr Puerto.
  2. These principles, sometimes referred to as the rule in Jones v Dunkel or a Jones v Dunkel inference, do not operate so as to require a party to give “cumulative evidence”.  As Heydon put it, if only some people who attended a relevant meeting give evidence about what happened at the meeting, no such inference can normally be drawn as the rule does not require that time be wasted calling unnecessary witnesses:  Cross on Evidence at [1215]. In the context of the present case, that means that no adverse inference could be drawn from the fact that the Ombudsman’s did not adduce evidence from other massage therapists. Since Mr Elvin argued that the Ombudsman’s witnesses were lying, however, and that the conditions under which they worked were different, his failure to adduce such evidence is a different matter.
  3. Further:

[A] party’s failure to give any satisfactory explanation of a prima facie case against him may suggest that the case is sound, either because silence is assent — an implied admission, or because it shows a consciousness of guilt or liability, or because inferences from the prima facie case, being unchallenged, are thereby strengthened.  The presumption is the stronger where the facts are particularly within his knowledge.

Heydon JD, Cases and Materials on Evidence (Butterworths, 1975) at 62.

  1. The fact that the proceedings are proceedings for a pecuniary penalty is not a satisfactory explanation:  Australian Securities and Investments Commission v Adler [2002] NSWSC 171; 41 ACSR 72; 20 ACLC 576; 168 FLR 253 at [504] (Santow J); appeal dismissed in Adler at [664]–[669]. The proceedings are still civil proceedings. The Court is expressly charged with applying the rules of evidence for civil matters when hearing proceedings relating to a contravention of a civil remedy provision: FW Act, s 551.
  2. Reliance on the penalty privilege does not prevent the Court from drawing an adverse inference.  And the privilege against self‑incrimination can only be claimed by a witness and then only under oath or affirmation:  Chong v CC Containers Pty Ltd [2015] 49 VR 402 at [236].
  3. A Jones v Dunkel inference may be drawn in both civil and criminal proceedings and regardless of the fact that the witness cannot be compelled to give evidence which is likely to incriminate him or her or expose him or her to a penalty:  Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442 (ACCC v Universal Music) at [33] (Hill J); Adler at [661] (Giles JA, with whom Mason P and Beazley JA agreed); Council of the NSW Bar Association v Power (2008) 71 NSWLR 451 at [25] (Hodgson JA, with whom Beazley and McColl JA agreed at [1] and [44]). In ACCC v Universal Music at [33] Hill J observed:

Where the proceedings are criminal (and the present proceedings are not; they are proceedings, inter alia, for the recovery of a civil penalty) it might be thought that the failure of the accused to go into evidence should not lead to the drawing of Jones v Dunkel inferences.  After all it is clear that a witness can not be compelled to give evidence which is likely to incriminate the witness or expose the witness to a penalty.  However, even in criminal cases it has been held that the failure of the accused, who is in a position to deny, explain or answer the evidence adduced by the prosecution, to give evidence will permit the jury to draw inferences adverse to the accused more readily:  see Azzopardi v R (2001) 205 CLR 50; 179 ALR 349, affirming Weissensteiner v R (1993) 178 CLR 217. A fortiori, therefore, the failure of a respondent to proceedings for recovery of a pecuniary penalty to give evidence on a matter relevant to an issue in the proceeding and deny, explain or answer the evidence adduced against the respondent will permit the Court more readily to draw the inferences to which the decision in Jones v Dunkel refers.

  1. Here the conditions for the operation of the rule are established and the available inferences are not only open, they should be drawn.  The absence of evidence from Mr Puerto is of particular significance, not only because he was clearly available and did not testify, but also because he is a party and was personally involved in many of the critical events.  In Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 at 582, in a passage cited by approval in Australian Securities and Investments Commission v Adler [2002] NSWSC 171; 41 ACSR 72; 20 ACLC 576; 168 FLR 253 at [448], Street J observed:

The inference which a Court can properly draw in the absence of a witness, where such absence is not satisfactorily accounted for, is that nothing which this witness could say would assist the case of the party who would normally have been expected to have called that witness.  The significance of this inference differs according to the closeness of the relationship of the absent witness with the party against whom the inference is sought to be propounded.  Where the absent witness is a party himself then considerable importance may well attach to the inference.  Similarly, the inference is significant if the absent witness is, as in the present case, a person who … was personally engaged in the transactions in question and who was in fact present at Court during part of the hearing …

See, too, Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [63] (Heydon, Crennan and Bell JJ).”

Fair Work Ombudsman v Foot and Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242 (14 October 2021) (Katzmann J)