Burden of proof in general protections’ cases

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“An allegation that a respondent’s conduct was for a prohibited reason enables that allegation to stand as sufficient proof of the fact unless the respondent proves otherwise but it does not relieve an applicant from ensuring that each of the ingredients of the contravention is made out, namely, for present purposes, that Ecolab took adverse action against Mrs Mikulic for a prohibited reason: Davids Distribution at 501 [109]; Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (1999) 140 IR 131 at 167 [161]-[162]; Rojas v Esselte Australia Pty Ltd (No.2) (2008) 177 IR 306 at 321-322.”

Mikulic v Ecolab Pty Ltd (2017) FCCA 146 delivered 2 February 2017 per Cameron J