This extract from an unfair dismissal decision deals with the burden of proof issues which are involved in cases where the employer alleges that misconduct was the basis for the decision to dismiss the employee.
“Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct – s.387(a)?
“[38] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”33 and should not be “capricious, fanciful, spiteful or prejudiced34.” However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it were in the position of the employer35.
[39] In cases relating to alleged misconduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.36 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.37 The employer bears the evidentiary onus of proving that the conduct on which it relies took place.38 In cases such as the present where a serious allegation is made, the Briginshaw standard applies so that any findings, if made, of the misconduct alleged are not made lightly;
“The standard of proof remains the balance of probabilities but ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’ and such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ or ‘by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.”39”
Weerasekara v Serco Australia Pty Limited. [2024] FWC 2462 delivered 12 September 2024 per Masson DP