Burden of Proof in Harassment cases rests with the complainant

Burden of Proof in Harassment cases rests with the complainant.png

Burden of Proof in Harassment cases rests with the complainant

A recent Federal Court case highlights the important principle that in cases of alleged harassment, the complainant bears the onus of proof. Failure to prove the substance of allegations is likely to result in the case being dismissed, as occurred in this situation.

The case arose from a complainant, employed as a mechanic in a workshop until stopping work on 29 October 2018.

After leaving his employment, he sought compensation in the sum of $160,000 for loss of income covering two years, future employment, and what he described as ‘severe mental health problems’ resulting from alleged inappropriate behaviour by his employer.

The matter had been referred from the Australian Human Rights Commission as they were satisfied that there was no reasonable prospect of the parties settling the matter through conciliation.

The complainant’s primary allegation was that the employer had sent him lewd and suggestive comments of a sexual nature via his mobile phone and that it caused him such stress that he was forced to resign.

The employer firmly rejected all allegations against him and claimed he did not employ the mechanic; rather, he engaged him as a subcontractor.

Both parties represented themselves in the proceedings, leading to what the presiding judge described as minimal cross-examination, a scarcity of evidence, and little contradiction of any evidence presented.

In denying he sent the texts, the employer claimed that other staff had free access to his mobile phone and that any of them could have sent the texts. The complainant failed to challenge this assertion in the hearing.

While acknowledging the texts were wholly inappropriate in the workplace and of a serious nature, Justice Neil McKerracher was at pains to remind the parties that the complainant “has the burden of proof in these matters”.

As Justice McKerracher commented in his decision,

“there is no corroborative support of any nature whatsoever for the applicant’s account. The applicant did not press for oral evidence or for cross-examination. He did not point to any inconsistencies in the account of the respondent or to any inherent implausibilities in the account. I cannot be satisfied in all the circumstances that he has discharged that onus”.

The application was dismissed.

W v A [2021] FCA 503 (13 May 2021)

For queries about employee misconduct or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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