Reverse Onus Explained: When the Burden of Proof Shifts in Your Favour

What Is a Reverse Onus?

A reverse onus, also known as a reverse burden of proof, is a legal rule that shifts the burden of proof from the person making a claim to the person defending against it (the defendant or respondent). In a standard legal case, the party bringing the claim must prove it. With a reverse onus, the defendant must prove they are not liable or guilty.

In certain situations, like specific employment disputes, this can be a powerful advantage for the person making the claim.

How to Know if a Reverse Onus Applies to Your Case

A reverse onus likely applies if the law presumes a key fact in your favour, making it the other party’s responsibility to provide evidence to disprove it. This is a key feature of general protections claims under Australian employment law, particularly in cases of dismissal after an employee has exercised a workplace right.

The Checklist: Does a Reverse Onus Apply in Your Favour?

Use this self-assessment tool to determine if a reverse onus may apply to your situation:

1. Is there a legal presumption in your favour?
   For example, in a “general protections” dismissal under the Fair Work Act 2009 (Cth), the law presumes a dismissal was for a prohibited reason if you can first show you exercised a workplace right.
   ☐ Yes ☐ No
2. Does the burden of proof shift to your employer?
   For instance, once you show you exercised a workplace right (like making a complaint) and were then dismissed, does your employer then have to prove the dismissal was for a legitimate, unrelated reason?
   ☐ Yes ☐ No
3. Does your employer lose by default if they fail to provide sufficient evidence to overturn the presumption?
   ☐ Yes ☐ No

Interpretation Guide: If you answered “Yes” to two or more of these questions, a reverse onus likely applies, which can significantly strengthen your case. You should seek immediate legal advice from a specialist, such as Fair Workplace Solutions.

I Think a Reverse Onus Applies to Me. What Do I Do Now?

If a reverse onus applies to your case, your priority is to adopt a proactive and strategic mindset. Your goal is to gather the initial evidence needed to ensure the legal presumption works in your favour.

Your 3-Step Action Plan

Step 1: Document Everything Immediately

Collect all relevant emails, messages, performance reviews, and witness contacts that support your case. While the ultimate burden of proof shifts to your employer, you must first establish the basic facts of your case (e.g., that you exercised a workplace right and that an adverse action occurred). According to the Fair Work Ombudsman, clear documentation is crucial.

Step 2: Clearly Articulate the Timeline of Events

Create a detailed timeline that connects the key events. For example, show that your dismissal occurred shortly after you made a formal complaint about workplace safety or requested parental leave. This timeline helps establish the link needed to trigger the reverse onus.

Step 3: Consult a Specialist Lawyer

Do not delay. Explain that you believe a reverse onus applies. This signals that you understand the specific legal strength of your case. Time limits are strict; you typically have only 21 days to lodge a general protections claim.

Try This Now

Open a document right now and write down:

• The date you exercised a workplace right (e.g., asked about your pay, made a complaint).
• The date the adverse action occurred (e.g., you were dismissed, demoted, or had your hours cut).

This is the starting point of the evidence needed to activate the reverse onus on your employer.

Common Mistakes to Avoid

Mistake: Assuming the reverse onus does all the work for you.
Solution: You must still build your initial case proactively. The presumption only works for you after you have presented evidence of exercising a workplace right and the subsequent adverse action. Your employer will then be required to prove their case.

Where Does Reverse Onus Apply? Common Examples

A reverse onus is not the default rule; it applies only in specific legal situations defined by statute.

Example 1: Employment Law (General Protections in Australia)

If an employee is fired after filing a safety complaint, the law presumes the employer fired them for that prohibited reason. Under section 361 of the Fair Work Act, the employer bears the reverse onus of proving the dismissal was for a completely separate and lawful reason.

Example 2: Possession of Unexplained Wealth

In some jurisdictions, including under Australian proceeds of crime legislation, if a person has wealth that cannot be explained by their lawful income, they bear the onus of proving it was obtained legally.

Example 3: Customs and Imports

Under the Customs Act 1901 (Cth), if a person is found with prohibited goods, they may bear the onus of proving they were unaware of them or had a lawful reason for possession.

How Is a Reverse Onus Different From the Normal Burden of Proof?

The crucial difference is who has to do the proving. Normally, the person making the accusation must prove their case. In a reverse onus situation, the person being accused must prove their innocence or disprove a key part of the claim.

Comparison: Standard Burden vs. Reverse Onus (in a General Protections Claim)

Next Steps

Understanding a reverse onus is critical because it changes the entire dynamic of a legal dispute. In employment law, it provides a powerful protection for employees. However, it requires a proactive, evidence-gathering approach from the very beginning to ensure you can trigger it.

The High Court of Australia has recognised that reverse onus provisions serve important public policy purposes, especially in protecting workplace rights. If you believe you are in a reverse onus situation, your next step is not more research, it is action. Use our checklist to organise your thoughts and contact Fair Workplace Solutions for advice. Remember, strict time limits often apply.