Most Read Contributor in Australia, September 2016
Since the commencement of the general protections scheme in the
Fair Work Act 2009 (Cth) (FW Act) the
number of dismissal-related general protections claims have
continued to increase both in overall numbers and as a percentage
of dismissal claims received by the Fair Work Commission.
Dismissal-related general protections claims lodged last year
amounted about 15% of overall dismissal claims received under the
One of the central issues in any general protections claim is
the actual reason or reasons which motivated the decision-maker
within the employer to take the adverse action. The Court will
resolve this question having regard to all the facts established in
Unless the decision-maker gives evidence as to the reason or
reasons for taking the adverse action, it will be extremely
difficult for the employer to discharge the statutory presumption
that the action was taken for the alleged unlawful reason.
Even if the decision-maker gives evidence that he or she acted
solely for a lawful reason or reasons, other evidence may result in
the Court not accepting the decision-maker's evidence. The
Court may consider the decision-maker's evidence to 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.
The recent Full Federal Court decision in State of Victoria
(Office of Public Prosecutions) v Grant  FCAFC 184 is a
further instance of a court making it clear it should not in
general protections cases ask whether some unlawful reason had
subconsciously influenced the decision-maker. Once the Court
accepts decision-maker's evidence that he or she acted solely
for reason that was not unlawful, that is the end of the matter.
The Court cannot say in effect, "Yes I believe you when you
say you did not dismiss the employee because of the alleged
unlawful reason, but I think there was some unconscious desire for
you to get rid of the employee for that reason."
In the Grant case it was alleged the applicant
employee's mental disability was the reason for the termination
of his employment. The employer's decision-maker testified this
had nothing to do with his decision to dismiss and the only reason
was the employee's misconduct.
The trial judge in Grant accepted the truth of the
decision-maker's evidence but believed there was "a
measure of unconscious reconstruction in his position". The
judge observed that it was "obvious from the
circumstances" the employee's ill health played a part in
the decision-making process. Even if it did not intrude upon the
decision-maker's consciousness, the employee' misconduct
was "completely interwoven with his medical condition".
The employee's illness led him to do the things causing his
dismissal, and the decision-maker knew of the illness. Therefore,
as a matter of cause and effect, the illness was part of the reason
why he was dismissed. It was not possible, according to the trial
judge to separate these matters.
On appeal the Full Federal Court rejected this approach. It
considered it was reasonable for the decision-maker to conclude the
employee's history of poor health was not linked to his
misconduct, and the two matters were not connected. There was no
documentary evidence which suggested the decision-maker's
stated reasons should not be believed. There were no prior dealings
between the decision-maker and the employee to suggest the former
wanted to rid himself of the latter because of his ill health.
The Full Court observed the mere fact there is a close
association between the unlawful reason and the conduct which gives
rise to adverse action and does not itself lead to the conclusion
that the unlawful reason motivated the decision-maker.
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change in law and is not intended to be relied upon as a substitute
for legal or other advice that may be relevant to the reader's
specific circumstances. If you have found this publication of
interest and would like to know more or wish to obtain legal advice
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