7.7.2.1 – Charge: Discrimination offence

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NOA has been charged with discriminating against an employee because of health and safety. This crime consists of five elements:

One – The accused was an employer at the relevant time;

Two – NOC was an employee of the accused;

Three – NOC engaged in protected conduct;

Four – The accused took action against NOC;

Five – The accused took action against NOC because of NOC’s protected conduct.

I will now explain these elements in detail.

Accused was an employer

The first element is that the accused was an employer. There is no dispute about this matter and so you should have no difficulty finding this element proved.[1]

Employed by the accused

The second element is that NOC was an employee of the accused. There is also no dispute about this matter and so you should have no difficulty finding this element proved.[2]

Protected actions

The third element is that the complainant engaged in protected conduct.

The law recognises many types of protected conduct. In this case, the prosecution must prove that NOC [identify relevant form of protected conduct, in accordance with Occupational Health and Safety Act 2004 s76(2)].

[Refer to competing prosecution and defence evidence and arguments].

Adverse conduct

The fourth element is that accused took action against NOC.

In this case, that means the prosecution must prove that NOA [identify relevant form of adverse conduct as stated in the indictment, e.g. dismissed NOC].

[Refer to competing prosecution and defence evidence and arguments].

Prohibited reason

The fifth element is that the accused took action against NOC because of [his/her] protected conduct.

The law has created a special rule for this element. For this element, the defence must prove that [his/her/its] dominant reason for taking action against NOC was not because [identify relevant prohibited reason as stated in the indictment, e.g., NOC was a health and safety representative]. This is an exception to the usual rule that the prosecution must prove all elements beyond reasonable doubt.

Unlike the other elements of the offence, the defence only needs to prove this matter on what is called the “balance of probabilities”. This is a much lower standard than that required of the prosecution. It only requires the defence to prove that it is more likely than not that NOA’s dominant reason for taking action against NOC was not because [identify relevant prohibited reason as stated in the indictment, e.g., NOC was a health and safety representative].

When you are considering this matter, you are looking at what NOA has proved about the dominant reason for the action against NOC. In other words, what was NOA’s main or most influential reason? Another way of looking for the dominant reason is to ask: Would NOA have taken that action if [identify the converse of the relevant prohibited reason as stated in the indictment, e.g., NOC was not a health and safety representative]? If NOA would have engaged in the conduct anyway, then [identify relevant prohibited reason as stated in the indictment, e.g., NOC being a health and safety representative] was not the dominant purpose.

[Refer to competing prosecution and defence evidence and arguments].

Summary

To summarise, before you can find NOA guilty of discriminating against an employee because of health and safety, the prosecution must prove three elements beyond reasonable doubt:

One – NOA was an employer at the relevant time;

Two – NOC was an employee of NOA;

Three – NOC [identify relevant form of protected action];

Four – NOA [identify relevant form of adverse conduct as stated in the indictment, e.g. dismissed NOC].

If you find these four elements proved, then you may find NOA guilty unless NOA has proved, on the balance of probabilities, that [his/her/its] dominant reason for [identify relevant form of adverse conduct as stated in the indictment, e.g. dismissing NOC] was not that [identify relevant prohibited reason as stated in the indictment, e.g., NOC was a health and safety representative].

Last updated: 22 August 2018

Notes

[1] - If this element is disputed, this part of the charge will need to be modified. The judge should set out the matters the jury needs to consider to determine whether the accused was an employer and identify the competing arguments of the parties.

[2] - If this element is disputed, this part of the charge will need to be modified. The judge should set out the matters the jury needs to consider to determine whether the complainant was employed by the accused and identify the competing arguments of the parties.

See Also

7.7.2 – Discrimination offence

7.7.2.2 – Checklist: Discrimination Offence