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Tuesday, 28 June 1994
Page: 2147

Senator CHAPMAN (9.44 p.m.) —With regard to the onus of proof, it needs to be remembered that the employer would be required to provide to the Federal Court in any unfair dismissal case his statement of reasons for dismissing the employee. So the reasons would be clearly set out there as to why the particular employee was dismissed. It is required in the rules of the court that he will provide that information so that the employee will have before him information about why he or she was dismissed. But that does not negate the need for the employee, who as the appellant is taking the action, actually to establish the unfair dismissal. That is why we believe that our amendment, which provides the onus of proof be on the employee, ought to be supported. I simply refer the minister to Federal Court rules order 12, rule 1, general 1(1), particulars of claim, which states:

  A party pleading shall state in the pleading or in a document filed and served with it the necessary particulars of any claim, defence or other matter pleaded by the party.

That clearly indicates that the employer would be required to provide to the court and therefore to the appellant—the employee—the reasons for the dismissal. On that basis we believe that there is adequate opportunity for the employee to test the reasons for the dismissal; but the onus for proving that the unfair dismissal was unreasonable or unconscionable ought to remain with the employee.

  Question put:

  That the amendment (Senator Chapman's) be agreed to.