The Commission held that the new objective reverse onus in s 213(5) of the IR Act applies to acts of victimisation occurring after 3 July 2025, even where the protected conduct predates the amendments, but the former subjective test under s 210(2) continues to apply to acts of victimisation that occurred before commencement. Under the new objective test, the Commission must determine the 'real reason' for the employer's action by assessing all surrounding facts, including but not limited to the decision-maker's subjective intent; the decision-maker's evidence is centrally relevant but not decisive, and the Commission may consider conscious and unconscious factors. The respondent failed to discharge the reverse onus under both tests because the sole identified decision-maker was not made available for cross-examination despite repeated warnings from the Commission, and no other witnesses involved in the investigation and recommendation process gave evidence — the Commission held that documentary evidence alone, without tested oral evidence from the decision-maker and other involved officers, was insufficient to discharge the onus under either the subjective or objective standard.
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