Onus of proof in unfair dismissal matters (Austin v Sandgate Taphouse)

Background

The respondent dismissed the appellant from his employment as a venue manager at the Sandgate Post Office Hotel. In dealing with his unfair dismissal application, the FWC said that the onus rested with the respondent to establish that it had a valid reason for the dismissal.

The FWC determined that there was a valid reason for the dismissal related to unsatisfactory work performance. But, the FWC found that it was not harsh, unjust or unreasonable in all the circumstances, notwithstanding some deficiency in the respondent’s performance management process and the procedures adopted in terminating the employment.

Decision

A central contention in the appellant’s appeal was that the respondent bore the evidential burden or onus of proof in relation to some criteria in s 387, which it failed to discharge. Accordingly, the FWC’s finding that the dismissal was not unfair was not open on the evidence.

The Full Bench reviewed the authorities and observed to the effect that —

• A notion of legal onus comes into play predominantly in the sense that if the FWC is not able to make a necessary finding in relation to the case of the party invoking the jurisdiction, that party should fail in having the jurisdiction applied in the manner sought.
• In most cases, the question of where an evidentiary onus resides will be answered by asking, in relation to each matter about which the FWC must be satisfied, which party will fail if no evidence or no further evidence about the matter were given.
• A failure by the parties to adduce evidence in relation to one of the matters in s 385 (eg whether an employer was a small business for the purposes of s 385(d)) does not relieve the FWC of its statutory obligation to reach the requisite satisfaction based on relevant and probative evidence.

The Full Bench noted that, because the FWC is not bound by rules of evidence and procedure (s 591), the principles associated with onus of proof are most appropriately applied on the basis that they are analogous, rather than directly on point or binding.

The Full Bench characterised the legal onus or burden of persuasion as the obligation of a party to meet the requirement of a rule of law that a fact in issue be proved (or disproved) to the requisite standard of proof; whereas the evidentiary burden is “… the obligation to show, if called on to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue.”

The Full Bench referred to Cross on Evidence for the difference between a “provisional” burden (effectively, one where a party’s evidence is ‘prima facie’ and the opponent runs the risk of losing on the issue if they remain silent); and a “tactical” burden (where the evidence adduced is ‘presumptive’ or ‘prima facie’ such that the opponent must adduce evidence on the issue or lose).

The Full Bench noted that where matters relevant to an unfair dismissal case are peculiarly within the knowledge of the employer, or about which the employer has superior knowledge (eg the reason for dismissal and the elements of genuine redundancy in s 389), the employer bears the onus of establishing those matters.

The Full Bench concluded to the effect that —

• To the extent that there is one, a legal onus, or something analogous to it, is borne by an applicant for an unfair dismissal remedy in relation to the s 385 matters. Where an applicant fails on any of such issues, the applicant fails on the ultimate issue of whether the dismissal was unfair.
• To the extent that there is one, an onus of proof analogous to an evidentiary onus operates in relation to the matters in ss 386 – 389.
• The matters in ss 386 – 389 (which relate to the s 385 matters) may also involve evidential burdens of proof akin to provisional or tactical burdens. Throughout the course of the hearing of an application for an unfair dismissal remedy, one or other of the parties may seek to adduce evidence to make out or negative a conclusion about a particular matter. The evidence adduced by one party will raise a provisional or tactical burden for the other party, which will make it prudent or necessary for the latter party to adduce evidence in response.

In the event, the Full Bench refused permission to appeal, finding that the FWC had weighed the evidence and considered each of the matters in s 387 in an orthodox manner.

Key takeaways

When preparing their evidence, parties should bear in mind that an applicant bears the overall burden to prove that a dismissal is unfair (s 385), and that either party may attract a provisional or tactical evidentiary burden of proof in relation to the ss 386 — 389 matters.

Read the full text of the Full Bench’s decision here: Brook Austin v Sandgate Taphouse Pty Ltd T/A Sandgate Post Office Hotel [2024] FWCFB 323

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