General protections risk when choosing who will give evidence for the employer

In cases where it is alleged a corporate employer took adverse action against an employee for a prohibited reason under the Fair Work Act 2009 (Cth), the employer faces a reverse onus of proof. If it is alleged the employer took the adverse action because of a prohibited reason, it is presumed that adverse action was taken for that reason unless the employer proves otherwise. In discharging the onus of proof, the evidence of the people who took the adverse action might need to be supplemented by decision-makers of the adverse action.

However, an employer doesn’t need to call evidence from every person involved in the decision-making processes. Only persons whose contribution was significant, substantial or essential are required.

When is a contribution significant, substantial or essential?

Two key cases show how the court will determine whether a contribution is significant, substantial or essential:

In Elliott v Kodak Australasia Pty Ltd (2001), two managers produced a joint assessment of employees to be selected for redundancy, which influenced the ultimate decision-maker. The Court ruled those managers made an indispensable contribution to the dismissal decision.
In Wong v NAB (2022), the decision to terminate employment was made by a manager who relied on a script, run sheet and draft email setting out reasons prepared by another manager. The Court ruled the decision-maker accepted at face value the facts asserted by the other manager in relation to behavioural issues without investigating the reasonableness, truth or accuracy of that information for herself. The Court determined this manager made an essential contribution to the dismissal decision.

When is a contribution not significant, substantial or essential?

Significant, substantial or essential contributions were explored in a more recent case, Totino v Metro Trains (2026).

In this case, as part of a termination process in relation to a senior manager, an in-house legal/industrial relations adviser prepared a show cause letter and gave advice to managerial decision-makers about options. This adviser was not called to give evidence. Because the adviser was involved in the decisions to issue the show cause letter and to dismiss, the applicant argued the employer’s failure to call evidence from the adviser meant the employer had not discharged the onus of proof.

The Court ruled the involvement of the adviser was quite different from the persons in the Kodak and Wong cases. The evidence of the managerial decision-makers was that they formed their own view about the employee’s lack of capacity to return to work and the operational need for her position as a senior manager to be filled permanently. They didn’t rely on the advice received. The employee’s lack of work capacity followed from the medical certificates and reports.

The adviser gave advice on what courses were open and included a recommendation. However, this was not a significant contribution to sending the show cause letter or to dismissing the employee.

Therefore, the employer discharged the onus of proof even though the adviser was not called to give evidence.

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