General protections — establishing liability and the reverse onus of proof

Authored by LexisNexis Legal Writer team.

The reverse onus of proof and the causal nexus

The prohibitions in Pt 3-1 (general protections) in the Fair Work Act 2009 (Cth) (FW Act) involve an assessment of whether a person has taken action against a person for a particular reason.

The courts will consider whether the action was an adverse action that was taken for a prohibited reason. There is no need that the prohibited reason be the only reason.

Importantly also, the burden of proof is reversed once sufficiently particularised by the applicant. This means that the respondent must prove the action was not for a prohibited reason.

Section 360 Fair Work Act 2009 (Cth) — multiple reasons

Section 360 of the FW Act provides that:

Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

This means that where there are multiple reasons for taking adverse action, it is only necessary that one of those reasons is a proscribed reason. In which case there will be a breach of the relevant general protections provision.

Case law has established the proscribed reason does not need to be the dominant reason for taking adverse action, but it must be a substantial and operative one: Board of Bendigo Regional Institute of Technical and Further Education v Barclay.