Federal Court: employers may face difficulties discharging onus of proof in general protections claims

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The general protection provisions of the Fair Work Act 2009 are designed to protect workplace rights including without limitation, a right not to be discriminated against, and freedom of association.

Under the provisions, an employer must not take adverse action against an employee because that employee has exercised a workplace right or proposes to exercise a workplace right. Adverse action does not just refer to terminating employment; it also covers circumstances such as altering the employee’s employment, taking disciplinary action or not employing the employee in the first place.

If a general protections claim is brought against an employer, the onus of proof is on the employer to prove that an adverse action was not taken against the employee for the reasons alleged by the employee.

In the recent case of CFMEU v Bengalla Mining Company Pty Ltd 28 March 2013, an employee alleged that adverse action, by way of disciplinary action, was taken against him because he took unauthorised absences from work to attend a union meeting. The managers who delivered the disciplinary action testified that the reason they took the disciplinary action was because the employee breached the employer’s policy which required that all unpaid leave be pre-approved. In this case, the Court accepted the manager’s testimony and found that there was insufficient evidence to find that the disciplinary action was only taken because of the employee’s attendance at the union meeting.

However, the Court pointed out that discharging the onus of proof may be difficult for an employer even if evidence is given that the adverse action was not taken for the reasons alleged by the employee.

The Court stated in this case that there are many circumstances in which an employer might not discharge the onus of proof. These include:

  • The employer’s evidence not being credible or being implausible.
  • Facts being presented by the employee which contradict the employer’s evidence.
  • Employer’s evidence not being supported by appropriate documents e.g. the managers could not rely on a policy if it was not documented and in place or the policy was in place but applied inconsistently.

Because the onus of proof rests with the employer, it is up to the employer to ensure that it has sufficient evidence to substantiate the position that it took. If, for example, the employer terminates an employee because of performance reasons, but the employee claims it was for a discriminatory reason (such as union membership), the employer must have evidence of the performance reasons to prove that the termination was in fact for that reason and not the discriminatory reason. Such evidence would include correspondence, emails, file notes, minutes of meetings held and witness statements, if applicable.

If you are considering disciplining an employee, or taking any action against an employee that you are concerned could lead to a risk of a general protections claim, please contact Christie Howson or Alison Garland of our office to discuss the reasons for the adverse action before the action is taken.

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