Rebuttable presumption as to reason or intent

1. If:
   1. in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
   2. taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

2. Subsection (1) does not apply in relation to orders for an interim injunction.

Under this section, where an application is made alleging that a person took action for a particular reason or with a particular intent, it is presumed that the person has taken the action for the alleged reason or with the alleged intent unless the person proves otherwise.

For example, if an application is made alleging that an employer dismissed an employee because the employee exercised a workplace right, once it is established that the dismissal took place and that the employee exercised a workplace right, it is presumed that the employer dismissed the employee because the employee exercised a workplace right unless the employer proves otherwise.

This section makes it easier than it otherwise would be to establish that a person took adverse action because the reason for taking adverse action usually lies entirely within the knowledge of the person who took the adverse action.

The court must consider why the adverse action was taken. This involves consideration of the person or decision-maker’s particular reason for taking the action and consideration of all the facts of the case at the time the decision was made, including those related to the adverse action.[1]

The person who is seeking to rebut the presumption will need to provide evidence about the reason for taking the adverse action and/or the intention at the time of taking the adverse action. In the case of an organisation or corporation, the reason or reasons motivating the person(s) in the organisation or corporation who effectively made the decision to take the adverse action will be significantly relevant. In that context, it is important to identify the effective decision-maker(s) and their motives.[2]

It will ordinarily be difficult to rebut the statutory presumption if no direct evidence by the person or decision-maker(s) who took the adverse action is given.[3]

Direct evidence of the decision-maker’s state of mind, intent or purpose will be considered, and the credibility of the decision-maker will be examined.[4] It will be up to the Court or Commission to consider whether the decision-maker’s evidence as to the reasons for taking the action is accepted. It is open to the other party to call evidence to demonstrate that the decision-maker’s real reason for taking the action was not what they said it was.

Direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer. However, 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.[5]

Related information

• Evidence

Consideration is not to be given to a decision-maker’s unconscious reasons. The decision-maker can only give evidence on reasons that they were conscious of. Unconscious reasons will not be considered because it would create an impossible burden to disprove.[6]

Presumption rebutted

Employer discharged presumption by giving direct evidence of decision-maker

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (7 September 2012), [(2012) 248 CLR 549].

The decision-maker explained her reasons for taking adverse action against the employee. She provided convincing and credible explanations of why she took the steps that she did. She adhered to her explanation for calling on the employee to show cause why he should not be disciplined for circulating the email. She maintained her denials of having acted against the employee for any reason associated with his union membership, office or activities.

The decision-maker’s evidence was accepted and the Court was satisfied she did not act for any proscribed reason.

Employer evidence supported by facts

Construction, Forestry, Mining and Energy Union v Bengalla Mining Company Pty Limited [2013] FCA 267 (28 March 2013).

An employee who was an office holder of the CFMEU was warned and threatened with dismissal for an unauthorised absence to attend the CFMEU’s board of management meeting.

The respondent gave detailed evidence from individuals who took part in the decision-making process. The evidence was supported by documents and was based on the company’s leave policy. There was nothing to suggest any of the decision-makers had a problem with the employee attending the meeting, but were merely concerned that he was doing so without approved leave.

No company witnesses were discredited and no objective facts contradicted their evidence. The onus was rebutted.

Presumption NOT rebutted

Credibility and truthfulness

Fair Work Ombudsman v AJR Nominees Pty Ltd [2013] FCA 467 (17 May 2013).

The employee contended that he was dismissed because he exercised his workplace right to paid leave for an absence due to serious illness. The Court did not accept the evidence of the decision-maker that he was unaware of the employee’s illness.

The Court found that the decision-maker had a motive to lie in order to avoid paying out a substantial amount of sick leave.

Respondent failed to call all relevant witnesses which contributed to failing to rebut onus

Fair Work Ombudsman v AJR Nominees Pty Ltd [2013] FCA 467 (17 May 2013).

The respondent company failed to call material witnesses that it asserted could prove many of the disputed allegations. It gave no satisfactory explanation for their absence.

In this case the court relied on the Jones v Dunkel inference that their evidence would not have assisted the respondent’s case.

Board of directors were not called to give evidence about reasons and intention

General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 (17 May 1976).

The Court found that the decision to dismiss the employee was made by the company’s Melbourne-based directors, in consultation with South Australian staff. The employee alleged that he was dismissed because of his position with the union. During the hearing the company only provided evidence from the South Australian staff.

The failure to provide evidence from the decision-makers meant that the company failed to rebut the presumption that they dismissed the employee because of his involvement with the unionn.

Sometimes the decision to take adverse action is made by a collective group, such as the partners in a business, the board of a corporation, at a council meeting, or a number of managers and supervisors.

In that circumstance, it may be necessary to call all members of the collective group to give evidence in order to rebut the presumption in s.361.

Relevant person(s) gave evidence

All relevant decision-makers called by company seeking to rebut presumption

Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399 (29 April 2010), [(2010) 186 FCR 22].

The respondent did not call all board members to give evidence in relation to decision-making process. The applicant submitted the Court should draw the adverse inference that the evidence of other board members would not have supported the respondent’s case. She alleged the respondent had not discharged the evidentiary onus of proof by failing to call all board members.

The employer argued that the other board members had agreed with the course of action proposed and had little to do with the alleged adverse action.

Their evidence was accepted and the presumption was successfully rebutted.

Relevant person(s) did NOT give evidence

All relevant decision-makers not called

Flavel v Railpro Services Pty Ltd [2013] FCCA 1189 (29 August 2013).

The Court found that there were three decision-makers who adversely affected the applicant by dismissing him.

Only two of the decision-makers gave evidence, the third did not. The Court considered that the third decision-maker was an important witness and expected that he would have been called.

As a result of the failure to call the third decision-maker, the Court drew the adverse inference that his evidence would not have assisted the respondent’s case.