Case: Maritime Union of Australia and Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34
Outcome: applied
As explained by Nicholson J in Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34 at 69, the words "or for reasons that include a prohibited reason" in s 792(1) permit a reason to be an operative reason provided it is one of the reasons for the conduct. As his Honour pointed out, it would not therefore have to be the "substantial" reason. 29 An important aspect of considering applications pursuant to Pt 16 of the Act is the onus of proof. Section 809(1) of the Act provides: (1) If: (a) in an application under section 807 relating to a person's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and (b) for the person to carry out the conduct for that reason or with that intent would constitute a contravention of this Part; it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person proves otherwise. (2) This section does not apply in relation to the granting of an interim injunction. 30 I have already explained that s 807 sets out penalties for contraventions of, inter alia , s 792(1). 32 The reasoning behind the reversal of the onus of proof was explained in the context of earlier equivalent sections of the Act by Nicholson J in Maritime Union of Australia 93 FCR at 68, citing Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 266-271 per Northrop J, where his Honour said: If the applicant proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for the respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason....... The reversal of the onus in respect of proof of the reasons for the conduct is a recognition that "the circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly with the knowledge of the employer": Heidt v Chrysler Australia Ltd at 267. (cf recent comments of Buchanan J in Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452 at [28] ). 36 I note that both Nicholson J in Maritime Union of Australia [1999] FCA 899 ; 93 FCR 34 and Buchanan J in Seymour [2006] FCA 1452 recognised that it is for the respondent to prove, on the balance of probabilities, that the termination was not motivated by an impermissible reason. Mr Hinson SC on behalf of the applicant submitted that the standard of proof in this case was the civil standard of the balance of probabilities. 39 The case before me involves the application of civil remedy provisions, and penalties which can be awarded against the respondent if appropriate. In my view the issue raised by Mr Horneman-Wren may be addressed by recognising that the civil standard of proof - that is, the balance of probabilities is applicable as required by s 140(1) Evidence Act , however in applying the civil standard it is appropriate to take into account the issues prescribed in s 140(2). This does not mean that I am required to apply a higher standard of proof than the "mere balance of probabilities" as submitted by Counsel. It does, however, require me in this case, in applying the civil standard, to take into account the nature of the claim, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged. In particular in the context of a civil remedy provision, I take into account the fact and the nature of the penalties which can be awarded against the respondent. This approach is consistent with the approach taken by Nicholson J in Maritime Union of Australia 93 FCR at 65. The duty of the court in such cases to take into account issues specified in s 140(2) has also been recognised in other Federal Court decisions including The Employment Advocate v National Union of Workers [2000] FCA 710 ; (2000) 100 FCR 454 at 464 and Hamberger v CFMEU (2000) 104 IR 45 at 49.