Section 361 of the Fair Work Act 2009 is an extraordinary provision because it reverses the traditional onus of proof in civil proceedings.

Ordinarily it is the plaintiff or applicant that must prove their case to the requisite standard of proof.

However, if an allegation of a breach of the general protections provisions of the Fair Work Act (ie. adverse action) is made by an employer or ex-employee, it is presumed that the action was taken for that prohibited reason or with that prohibited intent, unless the respondent employer positively proves otherwise.

Now, this reversal of the onus does not create an irrebuttable presumption of law in favour of the employee.

However, to rebut the presumption, it will usually be necessary for direct evidence to be called from the decision-maker(s) about the reason(s) for the adverse action and to positively establish that the reason(s) of the decision-maker did not include the proscribed reason.

And remember, the proscribed reason does not have to be the sole or dominant reason, but it does need to be a substantial and operative reason.

The expression “substantial and operative” means that the prohibited reason must be a significant or influential factor in the employer’s decision to take adverse action, even if it is not the only or main reason.

If this onus is not discharged, it is assumed that the action in question was taken for a prohibited purpose.

This then exposes the employer and any named respondent(s) (eg. a person who was knowingly involved in the contravention) to uncapped compensation orders and significant pecuniary penalties.

So, if you are an employer who is contemplating taking adverse action against an employee, then you should ensure that you:

  1. Act lawfully – your reason(s) for taking that action should not actually include a reason or reasons prohibited by the Fair Work Act; and
  2. Document carefully – clearly and comprehensively document your processes and reasons for taking the action.