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 FW Act.
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 the proceeding.
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 [2014] 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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