STANDARD OF PROOF for how do i prove my unfair dismissal?
So, you have been sacked from your job and want to lodge an Unfair Dismissal claim. However, you may believe your termination was unfair but do not have any physical evidence to prove it. Or perhaps you secretly recorded a conversation between yourself and the employer but are unsure whether it can be used as evidence. There are important properties you should consider when proving that your dismissal was unfair. So HOW DO I PROVE MY UNFAIR DISMISSAL?
Firstly, it is important to note that in the Fair work Commission, proving a dismissal as unfair is not a criminal test. Therefore, the relevant standard of proof is based on the Balance of Probabilities. In simply terms is it more probable than not that you have been unfairly dismissed?
Balance of Probabilities
In the Unfair Dismissals Benchbook, the term Balance of Probabilities is defined as being “the comparison of disputed facts to determine what is more likely to have occurred. A fact is proved to be true on the balance of probabilities if its existence is more probable than not.”
The Balance of Probabilities standard requires you to prove that the dismissal was more likely to be unfair, than not. As such, the standard in proving such occurrence, is that there is a 51% or greater probability, that the dismissal was indeed unfair.
Beyond a Reasonable Doubt
The standard of proof for an unfair dismissal claim differs to the standard for a criminal trial. In a criminal trial, the prosecution must prove Beyond a Reasonable Doubt that the accused committed the crime. The standard for proving this is usually a 98-99% probability that the accused is guilty.
In this instance, the party holding the burden of proof (Prosecution) would need to collect as much evidence as possible, to prove beyond any sort of reasonable doubt that the crime was committed by the accused. People watch too much “law and order” or CSI and think this is what is applicable here. However, in an unfair dismissal or general protections claim, you will only need to require evidence that prove on the Balance of Probabilities, the dismissal was unfair. Luckily for you, this standard is usually easier to meet than a criminal trial standard.
For example, in a General Protections claim, once it has been established that you exercised a workplace right and that a dismissal took place, it is presumed that your employer dismissed you for exercising your workplace right. The burden would then be placed on the employer to prove they did not dismiss you for that reason. This potentially makes it easier for you to prove that your dismissal was indeed unfair.
How do i prove my unfair dismissal? THE BEST EVIDENCE
In an unfair dismissal claim, the best way to prove that you have been unfairly dismissed is to source previous messages or emails with your employer, manager or colleagues.
There is no denying that the use of mobile phones and smart devices have increasingly become the most popular form of communication with others, especially during the COVID-19 pandemic lockdowns. Approximately 9 out 10 Australians own a smartphone and spend an average of three hours per day connecting with friends and working on our devices. Consequently, mobile phones and smart device have been playing an important role in unfair dismissal claims. They act as the communication platform between an employer and employee. As such, screenshots of messages/emails between yourself and your employer may be beneficial when proving an unfair dismissal, but it may also be used against you. With this in mind, it may be best to think twice before sending that angry message to your manager.
Keeping emails and messages
Throughout your employment, you should highly consider exercising your workplace right through emails or messages with your manager/employer. For example, complaining about being underpaid or inquiring about conditions related to your employment, such as working from home one day to look after a sick child. It is best to exercise your workplace rights in this manner, so that correspondence and replies to your complaints/inquiries, are written in return.
Wallace v AFS Security 24/7 Pty Ltd  FWC 4292
In the case Wallace v AFS Security 24/7 Pty Ltd, the Applicant sent text messages to the payroll associate raising concerns about the rostering arrangements and inquiring into the failure to provide proper payment to the Applicant. The associate replied via messages that the Company no longer requires the Applicant’s services, dismissing the Applicant effective immediately.
The Applicant had presented the Commissioner with evidential screenshots of the text messages exchanged between himself and the Company. The Commissioner concluded that the Applicant’s dismissal was harsh, unjust or unreasonable. Additionally, the Commissioner stated that dismissing the Applicant via text message for undisclosed reason was ‘plainly unjust, unreasonable, harsh, and, unconscionably undignified.’
Evidence is beneficial when arguing your case
Therefore, as demonstrated in the above case, keeping copies/evidence of your messages with your employer will be beneficial when arguing your case. The messages will aid in proving that your dismissal was unfair as it pushes the Balance of Probabilities chance beyond 51%.
McKay v Hail Creek Coal Pty Ltd  FWC 7868
Although, it is wise to be mindful during your employment, that you do not send any written form of communication to your employer that will detriment your case. For example, in McKay v Hail Creek Coal Pty Ltd. The Applicant had left a threatening telephone voice message to his employer, in which was converted to a text message. The message read ‘you are dead, you just don’t realise it yet’ and I’m going to kill you…’ Consequently, the Applicant was dismissed. In this case, the Senior Deputy President concluded that the Applicant’s dismissal was not unfair in the circumstance.
Perhaps you have no physical or written evidence to prove your dismissal was unfair. Although, you may have a copy of a recorded conversation between yourself and the employer, demonstrating a harsh, unjust or unreasonable termination. In some circumstances, the admission of recorded conversations may be unlawful. This is determinate upon which state you reside as there are different laws governing privacy and surveillance devices in each state.
In Victoria, employees may record “private conversations” only if they are a party to the conversation itself. Although, it is unlawful for the employee to communicate or publish the recorded conversation. Section 11 of the Surveillance Devices Act 1999 (Vic) lists exceptions to the communication of such recording. The exceptions are:
- that there was express or implied consent of each party to the communication or publication of the private conversation,
- that the communication or publication is to protect the employee’s lawful or public interest.
- Or that the recording is communicated or published in the course of legal proceedings or disciplinary proceedings.
However, despite these exceptions, it is ultimately dependant on the Fair Work Commission as to whether the recording may be admissible in conciliation and proceedings. This is despite whether the recording was obtained lawfully or unlawfully.
Kharb v Eastfield  FWC 6403
In Kharb v Eastfield Pty Ltd. The Applicant did not obtain any written material evidence to support his unfair dismissal claim. Instead, the Applicant relied on the private conversation that was recorded between the Applicant and his employer. This was recorded via his mobile phone. The issue was whether the secretly recorded audio was admissible as evidence.
The Senior Deputy President concluded that it is lawful in the Queensland Jurisdiction for the Applicant to secretly record a conversation to which he was a party to. Additionally, the Deputy President decided that the recording was permissible as the Applicant had made use of the recording for civil proceeding purposes.
As such, recordings of private conversations between yourself and the employer may be permitted by the Fair Work Commission. Although, this form of evidence is not recommended as it may hinder the trusting relationship between you and your employer, potentially leading to a reason for a fair dismissal.
Schwenke v Silcar Pty Ltd  FWC 4513
For example, in Schwenke v Silcar Pty Ltd. The employee was dismissed for secretly recording a disciplinary meeting. The Commissioner decided that the secret recording had ‘undermined the mutual trust and confidence required in the employment relationship.’ In turn the Commissioner concluded that it was a fair dismissal as the employee was not dealing honestly and openly with the employer and work colleagues.The Commissioner made note that secret recordings are more likely to be permissible in one-on-one circumstances where there is clear discrimination, harassment or bullying.
Ultimately, it is recommended that you do not record private conversations between yourself and your employer without their permission. Unless you are sure there will be discrimination, harassment or bullying in the circumstance. Consequently, it is suggested the best form of evidence of a conversation between yourself and the employer is to be via messages/emails.
HOW DO I PROVE MY UNFAIR DISMISSAL?
NO WRITTEN OR RECORDED EVIDENCE?
If you do not have any proof or evidence regarding your unfair dismissal, you may still lodge an unfair dismissal or general protections claim.
As mentioned previously, the standard of proving your unfair dismissal case is on the Balance of Probabilities. Therefore, even if you do not have messages/emails of your conversation (perhaps your work email or work phone was taken from you after your dismissal), you can still prove on the balance of probabilities that your dismissal was unfair.
The more detail you write in your claim, the better the chances of proving your unfair dismissal. As such, it is highly recommended that as soon as your dismissal becomes effective, you draft your claim so that the details are still fresh in your memory. At A Whole New Approach, we can draft the claim for you to a Federal Court standard. Ensure the appropriate and relevant evidence is attached as exhibits to your claim.
Additionally, you may like to call upon a colleague to draft a witness statement in regard to your dismissal. Only if they are willing to provide evidence that will support your claim.
FALSE OR MISLEADING EVIDENCE
It is extremely important to note that you should not provide any false or misleading evidence, or evidence that has been tampered with. Additionally, you cannot coerce a colleague/witness to provide a false or misleading statement either.
According to the Fair Work Commission, a person (the witness) commits an offence if:
- The witness gives sworn or affirmed evidence, and
- Gives the evidence as a witness; in a matter before the commission, or before a person taking evidence on behalf of the Commission for use in a matter that the witness will start by application to the Commission; and
- The evidence is false or misleading.
- This offence carries a penalty of imprisonment for up to 12 months.
Additionally, stealing evidence to support your claim will not be admitted by the Commission either. In Walker v Mittagong Sands Pty  FWC 9440, the Applicant was accused of stealing oil from the Company. The Employer had illegally searched the Applicant’s car without permission and took oil samples to get tested. It was decided that the evidence was unlawfully obtained and was therefore not admitted.
5 OVERALL TOP TIPS for “how do i prove my unfair dismissal?”
1. Keep screenshots of emails/messages between yourself and your employer.
2. If your conversations are in-person, note down any dates and quotes of what was said in those discussions.
3. Ask colleagues for witness statements if they are relevant and would support your claim.
4. Avoid recording secret conversations. Unless you are definitely certain there is discrimination, harassment or bullying, and if you do not have any proof through messages/emails. (i prefer you not take this approach)
5. Ensure you do not provide false or misleading evidence.
Conclusion: How do i prove my unfair dismissal?
I hope the article was of some benefit to you, being sacked, or dismissed is serious. We all know it can have devastating consequences to you, your career and your family. Have any questions around the proving your case, gathering evidence, give me a call, advice, assistance is free. AWNA represent employees in all Fair work Australia and Fair work Commission matters. including unfair dismissal, adverse action , forced to resign, workplace investigations. Workers rights, probation period issues, abandonment of employment concerns. We are not lawyers but the nations leading workplace advisors and commentators
An interesting blog on unfair dismissal that expands out from the evidence part of your case to is the unfair dismissal is it worth it? page, that may assistance you, click here. We work in all states, including Victoria, NSW and QLD
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Articles similar to HOW DO I PROVE MY UNFAIR DISMISSAL?
 Fair Work Commission, Unfair Dismissals Benchbook (1 July 2021).
 Australian Mobile Telecommunications Association, ‘Mobile Consumer Survey 2017’, Deloitte (Report, 2017) <https://www2.deloitte.com/content/dam/Deloitte/au/Documents/technology-media-telecommunications/deloitte-au-tmt-mobile-consumer-survey-2017-211117.pdf>.
 Wallace v AFS Security 24/7 Pty Ltd  FWC 4292, .