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General protections benchbook

An overview of legal procedure & case law

Rebuttable presumption as to reason or intent

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  • Reason for action to be presumed unless proved otherwise – s.361
  • How can the presumption be rebutted?
  • Case examples
  • Multiple decision-makers
  • Case examples
  • References

 

Reason for action to be presumed unless proved otherwise – s.361

  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.

How can the presumption be rebutted?

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]

To rebut means to refute by evidence or argument, to oppose something by proving the opposite.

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]

Case examples

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.

Multiple decision-makers

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.

Case examples

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.

References

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

[2] General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605.

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

[4] Fair Work Ombudsman v AJR Nominees Pty Ltd [2013] FCA 467.

[5] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 549 (7 September 2012) [45].

[6] ibid., [146].

Updated time

Last updated

15 June 2018

 

 

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      • Application of an enterprise agreement
      • What is the minimum period of employment?
        • How do you calculate the minimum period of employment?
        • What is continuous service?
        • What is an excluded period?
      • Bankruptcy
      • Insolvency
    • What is dismissal?
      • When does a dismissal take effect?
      • Terminated at the employer's initiative
      • Forced resignation
      • Demotion
      • Contract for a specified period of time
      • Contract for a specified task
      • Contract for a specified season
      • Training arrangement
      • What is a transfer of employment?
      • Periods of service as a casual employee
      • What is a genuine redundancy?
        • Job no longer required due to changes in operational requirements
        • Consultation obligations
        • Redeployment
      • What is the Small Business Fair Dismissal Code?
    • What makes a dismissal unfair?
      • Valid reason relating to capacity or conduct
        • Capacity
        • Conduct
      • Notification of reason for dismissal
      • Opportunity to respond
      • Unreasonable refusal of a support person
      • Warnings – unsatisfactory performance
      • Size of employer's enterprise and human resources specialists
      • Other relevant matters
    • Making an application
      • Application fee
      • Timeframe for lodgment
      • Extension of time for lodging an application
      • Who is the employer?
      • Multiple actions
      • Discontinuing an application
    • Objecting to an application
    • Commission process
      • Conciliation
      • Hearings and conferences
      • Preparing for hearings and conferences
      • Representation by lawyers and paid agents
      • Rescheduling or adjourning matters
      • Bias
    • Remedies
      • Reinstatement
        • Order for reinstatement cannot be subject to conditions
        • Order to maintain continuity
        • Order to restore lost pay
      • Compensation
        • Calculating compensation
        • Mitigation
        • Remuneration
        • Other relevant matters
        • Compensation cap
        • Instalments
    • Dismissing an application
    • Evidence
    • Costs
      • Costs against representatives
      • Security for costs
    • Appeals
      • Staying decisions
    • Role of the Court
  • Waltzing Matilda and the Sunshine Harvester Factory
    • Introduction
    • The book
      • Book launch
    • The film
      • Film launch
    • Historical material
      • 38 Hour Week Wage Principle [1983]
      • 40 Hour Week Case [1947]
      • 44 Hour Week Case [1927]
      • Apprenticeship indentures
      • Australian Minimum Wage and fitter (trades) rate since 1906
      • Boot Trades Case
      • Careers in Bootmaking and Boot Repairing
      • Cattle Industry Case 1966
      • Commercial Printing Case [1936]
      • Commonwealth Conciliation and Arbitration Act 1904
      • Cost of living newspaper articles from the early 1900s
      • Debates
      • Equal Pay Case 1969
      • Equal Pay Case 1972
      • Fruit Pickers Case
      • Gas Employees Case
      • Graph of Australian Minimum Wage since 1906
      • Harvester Case
      • Historic case judgments on the Fair Work Commission's website
      • Kingston's evidence
      • Linesmen's Case
      • Maternity Leave Case [1979]
      • Metal trades base level minimum wages [1967–2015]
      • Methods of wage adjustment
        • Establishing an Australian Minimum Wage 1907?1922
          • The origins of the Australian minimum wage
          • The 'needs' principle and 'capacity to pay'
          • Women's wages
          • First indexation decision
        • Quarterly indexation 1922–1953
        • The Great Depression 1931
        • Prosperity loadings 1937
        • World War II 1939–1945
        • The post-war period: 1953–1965 basic wage inquiries
        • The total wage 1966–1967
        • Removal of discrimination in award rates
        • Reintroduction of quarterly wage indexation 1975–1978
        • Six monthly wage indexation 1978–1981
        • Wage explosion 1981–1982
        • Reforming awards and work and management practices 1987–1991
        • Six monthly wage indexation 1983–1987
        • Enterprise bargaining and a minimum wage safety net 1991–1996
        • Statutory adjustments
        • The minimum wage in real terms
      • Mrs Beeton's cookbook
      • Paternity Leave Case [1990]
      • Personal/Carer's Leave Test Case [1995]
      • Piddington report
      • Re Bagshaw [1907]
      • Significant cases on the Fair Work Commission's website
      • Statistics for the purpose of comparison with the Australian minimum wage
      • The Amalgamated Society of Engineers v. The Adelaide Steam-ship Company Limited and Others
      • The Australian minimum wage from 1906
      • The Federated Marine Stewards and Pantrymen's Association v. The Commonwealth Steamship Owners' Association and Others
      • The Victorian minimum wage 1896
        • Legislative Council Second Reading Speech to the Factories and Shops Bill 1896
      • The first Award: 1906 Steam-ship Crew
      • 100 years of the minimum wage—Statistical comparison
    • Mrs Beeton's cookbook
    • Glossary
    • Related sites
    • Educational materials
  • AWRS First Findings report

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