The more serious the allegation, the more probative the evidence must be to support a conclusion on the balance of probabilities.
In the last article in our series on Workplace Investigations, we look at an essential part of the investigative process: assessing the evidence and drawing findings of fact as part of your investigation. We explore some of the key principles and two case studies that show how taking the time at this point can make all the difference when looking to trust the outcome.
Key Principles for Evaluating Evidence
Once you have gathered the evidence and given the respondent a chance to respond, the next step is to assess the evidence and make findings of fact about the issues being investigated.
Standard of proof
When assessing evidence in a workplace investigation, there are two key principles to keep in mind:
- The “balance of probabilities” is the relevant standard to apply and involves assessing whether the evidence supports that it is more likely than not that particular facts occurred or did not occur. When the evidence does not tip the scales in favor of establishing a particular fact, then it is not proven.
- The principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 require that the more serious the allegations, which can lead to serious consequences for the employee (such as termination of employment), the more probative the evidence adduced must have. proportionately high.
Best practice in workplace investigation includes applying the Briginshaw Standard to every investigation, regardless of the seriousness of the potential consequences for the employee being interviewed. Ensure that only high probative evidence is used to draw conclusions from an investigation to ensure that the outcome of any workplace investigation is defensible if challenged.
Principles of probative value
Probative value of evidence refers to the extent to which the evidence tends to persuade you of the truth of the allegation. Specific characteristics of the evidence may affect its level of probative value, in particular:
- whether the evidence is first hand or not;
- whether the evidence is corroborated by other evidence; and
- an assessment of the credibility of the source of the evidence, especially in circumstances where the facts are in dispute and you need to form an opinion on which account you prefer.
Balancing these factors will determine the probative value and weight to be given to each piece of evidence in reaching a conclusion about a claim or justifying a reason for taking a particular action.
Other important factors in assessing evidence include:
- The prejudicial nature of the evidence:
- Being unfairly biased towards a respondent can affect the strength of your evidence and conclusions. Always balance prejudicial evidence with its probative value. This often happens when it comes to similar fact evidence. Similar fact evidence should be given less weight than evidence relating to the conduct that is the subject of the allegations.
- Was the proof obtained legally:
- In Haslam v Fazche Pty Ltd T / A Integrity New Homes  FWC 5593, the Fair Work Commission denied the use of audio recordings made by the employee in meetings with her employers to demonstrate that she was fired and did not quit. The recordings were not obtained legally or correctly and were therefore refused. More often than not, the Fair Work Commission will take a negative view of employees who engage in such conduct, noting that “it is gravely reprehensible and inexcusable … and just cause for termination” (Thomson v John Holland Group Pty Ltd  FWA 10363).
- Relevance of the evidence:
- The best practice is to adopt the rules of evidence regarding admissibility, even if the same standard is not required in a workplace investigation. This will help you trust your conclusions if the outcome is in dispute.
Case study: Bajelis
In Bajelis v Reserve Bank of Australia  FWC 3740, Mr Bajelis has applied for an unfair dismissal remedy after his employment was terminated following the accidental sending of racist texts to a WhatsApp chat at work. Three minutes after sending the messages, another member of the group replied “I don’t think this is a very appropriate thing to say or very polite”, and within four minutes of sending the first messages, Mr. Bajelis had identified what he had done, deleted the chat messages and apologized, including stating: “I’m sorry to anyone who was offended.”
Mr. Bajelis’ job was dismissed a month later following an internal investigation. The letter advising him of his dismissal set out the reasons for the decision, including:
- due to the fact that the messages have been sent;
- because a number of employees found the comments offensive; and
- because it fundamentally undermined Mr. Bajelis’ ability to have an ongoing working relationship with his colleagues.
Vice President Cross found that there was insufficient evidence to support that:
- “A number of employees” were offended; and
- that Mr. Bajelis had undermined the current working relationship by sending the messages.
On the contrary, the vice-president was:
- convinced that the evidence supported, there were only two employees who were offended, and only one of them found the messages rude, which was less serious than being offended by the message.
- not convinced that there was evidence that sending the messages by Mr. Bajelis had an impact on his ability to have an ongoing and productive working relationship with his colleagues in the future.
Ultimately, Vice President Cross ordered that Mr Bajelis be reinstated and be compensated for the time that elapsed between his dismissal and the reinstatement date. This case demonstrates the importance of balancing your evidence and, when assessing weight, of ensuring that there is enough evidence to support your decision.
Case Study: Kelly vs. The Hills Christian Community School Inc
This case shows how the credibility of a witness can be the determining factor in forming an opinion on his testimony. Catherine Kelly was a reception teacher at Hills Christian Community School. She was fired from the school due to an incident where she gave one of her students a chocolate bar for her birthday, and as a result, the student had an allergic reaction. This particular student had a number of allergies known to the school. Following an investigation into the incident, Ms Kelly’s job was terminated for gross misconduct on the basis of a breach of procedures in place regarding the student and the food he was supposed to eat at the school. ‘school. Ms Kelly then filed a wrongful dismissal complaint. Ultimately, Commissioner Platt ordered Ms Kelly’s reinstatement because her dismissal was deemed unjust.
The decision came down to an assessment of the weight that was given to the various testimonies of the transfer process that took place between Ms. Kelly and another teacher.
Regarding the incident, Ms Kelly argued that she had checked the ingredients of the chocolate bar and was satisfied that, noting her allergies, the child could eat it and that this was in accordance with the process to track for that student. Another teacher, Ms Romaldi, testified that during a handover between the two teachers, she provided handwritten instructions to Ms Kelly that the student could only eat food provided by the student’s parents. Ms Kelly denied being made aware of this and said the first time she learned of it was while reading Ms Romaldi’s statement during the school’s investigation. The question for Commissioner Platt to determine was whether the testimony of Ms. Romaldi or Ms. Kelly regarding the transfer of processes for the student should be preferred.
Commissioner Platt ultimately preferred Ms Kelly’s testimony as it was always consistent, and Ms Romaldi’s testimony about the meeting referred to other material which, when tested, was found to be false. For example, Ms Romaldi stated that the file used during the surrender was green, but a photograph of the file which was in evidence before the Commission showed that the file was red. Commissioner Platt noted that the internal investigation did not examine in detail the documents that were actually used during the surrender.
By preferring Ms Kelly’s testimony to that of Ms Romaldi, the outcome of the workplace investigation was called into question and Ms Kelly was reinstated. This case demonstrates how credibility can be used to support an investigator’s decision to prefer the testimony of one witness over another, especially in circumstances where there are two competing versions of events. (Catherine Kelly v The Hills Christian Community School Inc T / A The Hills Christian Community School  CC 4134)
Key points for workplace surveys
- The more serious the allegation, the more probative the evidence must be to satisfy a conclusion on the balance of probabilities;
- Consider all the relevant evidence and test any conflicting evidence;
- When examining past behavior, consider prejudicial effect versus probative value;
- Where there is corroborating evidence, consider the possibility of collusion; always test the evidence;
- When assessing credibility, identify your own biases, assess reliability and consistency, and remember that everyone behaves differently during the interview;
- The more thorough the investigation and assessment of the evidence, the better the chances of defending a wrongful dismissal claim with the Fair Labor Board.