Brown v Mount Isa Mines Limited [2001] QIRC 177 (2001) 168 QGIG 219

2 November, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 219 ##################################1#/####################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION COMMISSIONER TIIOMPSON Industrial Relations Ac11999-s. 74 - application for reinstatement Gregory Brown AND Mountlsa Mines Limited (No. B1398 of2001) 23 October 200 I Preliminary Issue - Onus of Proof- Workplace Relations Act 1997 - lnternalional Labour Organisation's Termination of Employment Convention Application to reverse onus of proof refused - Further Directions Orders to remain in force. DECISION A hearing was held on 18 October 2001 to hear submissions from the parties and to determine a preliminary issue in tenns of the onus of proof in this matter where it is alleged that Mr Gregory Brown had his employment terminated by Mount Isa Mines Limited (MIM) for an invalid reason in that he had been dismissed on the basis of his union membership or activity, An amended application was filed on 15 October 2001 (original application filed 8 August 2001) where, at the material facts to be relied upon in support of the applicant's position, at paragraph 4, it was amended to say "the dismissal was for an invalid reason related to Mr Brown's activities as a member and delegate of the A WU and/or the dismissal was harsh, unjust and unreasonable". Mr Ben Swan, of The Australian Workers' Union of Employees, Queensland (AWU), for the applicant, in submissions, sought to have the onus of proof which, under the general principle of law is that "he who asserts must prove", in effect, reversed, so that in this matter where the alleged reason for dismissal is invalid, then the respondent must bear the onus of proving that the dismissal was not for an invalid reason. It was acknowledged, by Mr Swan, that the Industrial Relation Act 1999 (Act) does not specify where the onus rests in applications for alleging an unfair dismissal, nor does it specifically provide that the onus of proof shall not, or cannot be reversed in cases that allege that a dismissal has been affected for an invalid reason. In the Workplace Relations Act 1997 (WRA), the immediate legislation in force prior to the proclamation of the current act, at s. 22!(b) provided that an employer bore the,onus of proving that a dismissal was not for an invalid reason:- "(b) for an application that alleges the dismissal was unlawful because it was for an invalid reason - the employer to prove the dismissal vvas not for an invalid reason.". The provision contained in the WRA accorded the requirements of Article 9 (2)(a) of the International Labour Organisation ·s Termination of Employment Convention (Convention) which was in line with Australia's international obligations in relation to labour standards. It was submitted that despite the absence of any specific wording to the contrary in the Act, the respondent should bear the onus of proving that the dismissal was not for an invalid reason. Supportive of this pos�tion, according to Mr Swan, was the traditional approach of industrial tribunals, including the Queensland ln\!ustrial Relations Commission (QIRC), to reverse the onus of proof He relied upon the decision of Fisher C in Transport iVorkers' Union ofAusrrafia, Union of Employees (Queensland Branch) v South Western Suburban Transit (B80 of 1990) where the Commissioner said;- "In a case where dismissal has occurred allegedly on the grounds of Union membership or activity, the onus of proof is placed on the defendant employer (The Queensland Ambulance Union of Employees v Queensland Ambulance Transport Brigade Hospital at Laidley - appeals from Decisions of Industrial Magistrate at Laidley (63 QGIG 335)). The Federal Court decision, K W Wood v Melbourne City Council ( 1979 AILR 155) demonstrates that, ifan employer can show that a valid reason for dismissal, other than one which is prohibited, existed, then an offence could not be proven. This view is supported by the decision B v General J,.,fotors Holden ( 1976 AILR 659).". Of recent decisions before the QIRC, Mr Swan submitted that the decision of Asbury C in Stephanie Marcinow 1• MarketP!ace Communications Pty Ltd (B604 of2000) should not be relied upon as the finding was not in line with �he established authorities previously relied upon b)' the Commission. -- 1 of 2 -- -- 2 of 2 --