Cai v Tiy Loy & Co Ltd

In the Federal Circuit and Family Court of Australia, Judge Manousaridis considered a claim brought by an employee, Mr. Cai, against his former employer, Tiy Loy & Co Ltd. Mr. Cai alleged that Tiy Loy & Co Ltd had taken adverse action against him in contravention of section 340 of the *Fair Work Act 2009* (Cth). The core of the dispute was whether the employer's actions were motivated by Mr. Cai having exercised or being entitled to exercise a benefit under the *Workplace Injury Management and Workers Compensation Act 1998* (NSW) (the Compensation Act).

The court was required to determine several key legal issues. Firstly, it had to ascertain whether Tiy Loy & Co Ltd had indeed taken adverse action against Mr. Cai. Secondly, the court needed to decide if any such adverse action was taken because Mr. Cai had or had exercised an entitlement under the Compensation Act. This involved considering whether the Compensation Act qualified as a "workplace law" for the purposes of the *Fair Work Act*. Thirdly, the court had to assess whether the employer could discharge its burden of proof by demonstrating that it did not take adverse action for the proscribed reason. Finally, the court considered whether Mr. Cai had suffered any loss as a result of the alleged adverse action.

In addressing the burden of proof, the court acknowledged the difficulty in proving a negative proposition – that action was not taken for a particular proscribed reason. Judge Manousaridis held that the party bearing this burden must articulate a credible, asserted reason for their actions that is inconsistent with the proscribed reason. The court emphasised that the means of proving this asserted reason must involve adducing evidence capable of supporting a finding that the action was taken for that asserted reason, or for reasons that included the asserted reason as a substantial and operative factor. Failure to adduce such evidence would have significant consequences for the party bearing the burden.