(iv) as a consequence of the appellant's victimisation, it was for the respondent to positively prove, on the balance of probabilities, that the appellant's complaint was not a substantial and operative cause of the detriment she suffered.
Consideration
21 The principal issue in the appeal is whether the Commissioner erred in finding that the respondent discharged the onus of proof as required by s 210(2) of the Act. In the present matter, this provision operated in a context where it was contended that the employee was victimised because she made a complaint about a workplace matter that she considered was not safe or a risk to health. The Commissioner found (at [35]) that there was no doubt, and it was not contested, that the appellant made a specific complaint of an "unsafe workplace" in relation to the particular comment made to her by Mr Newbery on 17 April 2008. It was acknowledged by the parties that the complaint, so made, fell within the matters contemplated by s 210(1)(j) and potentially thereby enlivened s 213 of the Act.
22 The relevant factual circumstances here are reasonably straightforward. The appellant and two other employees worked in what was known as the Field Computing Group. One of the employees was Mr Newbery, who was the appellant's supervisor and the other was Mr Paul Kelly. After the making of a complaint, the appellant was redeployed because there was insufficient work for three people. The respondent contended the basis for transferring the appellant was the shortage of work and, therefore, the provisions of s 210(1) were not offended.
23 However, the Commissioner did not consider which employee was the appropriate employee that should have been redeployed, if at all, and why the other two employees, being Mr Newbery and Mr Kelly, should not have been chosen for redeployment (or for that matter why the employer did not address that question).
24 The reverse onus provision, in our opinion, required that the respondent demonstrate that the safety issue which led to the complaint was not an actuating reason for the appellant's redeployment. The employee had the benefit of the assumption that she had been redeployed because she made the complaint and therefore the onus is on the employer to establish that that was not the reason. To merely establish on the evidence that it was necessary to redeploy one employee leaves open the possibility that this employee was chosen for the reason of her complaint, particularly when that complaint was made at a time coincident with the transfer. Further, the evidence was that many months later at the hearing, two persons were still working in the section.
25 The High Court of Australia in General Motors Holden v Bowling explained the meaning of the reverse onus provisions then found in s 5 of the Conciliation and Arbitration Act 1904 (now repealed). That case involved an employee who was a union official and also a troublemaker, who had been dismissed from his employment. The Court accepted that a substantial reason for his dismissal was that he was a troublemaker, but in that particular case, the particular officer of the employer who was responsible for making the decision to dismiss the appellant was not called to give evidence. In those circumstances, it left open, when analysed, the option or possibility that the employee was dismissed because he was also a union official.
26 Section 5(1) of the Conciliation and Arbitration Act made it a contravention for an employer to dismiss an employee, or injure him in his employment because the employee was an officer, delegate or member of an industrial union of employees. Section 5(4) provided, inter alia, that in any proceedings for an offence against the section, if all the facts and circumstances were proved, it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge. Mason J, with whom Gibbs, Stephen and Jacobs JJ agreed, Barwick CJ dissenting, stated at 617:
To succeed the appellant has to show on the evidence that he was not actuated by the consideration set out in s 5(1)(a). In the circumstances of this case he will not achieve this objective unless the evidence establishes the real reason for the dismissal, notwithstanding that the appellant failed to put it forward at first instance, and that it lies outside the ambit of s 5(1)(a).