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Workplace Investigations – Standards of Proof and Evidence

Posted on by John McKenzie

At some point in time most Managers and HR professionals will be required to investigate an incident or allegation occurring in the workplace. Workplace investigations often involve sensitive and complex circumstances, such as allegations  of bullying and harassment or discrimination. They can also involve other employee misconduct or  grievances. Ensuring that the investigations are conducted fairly and accurately is crucial.  Often the Investigation Report and Findings will be subject to third party scrutiny, such as the Fair Work Commission.

The question of what standard of proof to apply and the consideration of evidence in an Investigation’s Findings was reviewed by a Full Bench of the Fair Work Commission (the Commission) in a recent unfair dismissal case.[1]

Summary of Facts:

A union delegate was dismissed following an investigation into an email sent by him to around 160 of his colleagues. The email was found to have targeted and humiliated three employees that had organized and/or attended certain employer provided training. The union delegate viewed this training unfavorably and believed  that it would lead to reductions of employees  in  the workforce. The tone of the email was considered to be intimidatory and hostile towards the employees concerned. This conduct was found to be a breach of company policy and the Commission found there was a valid reason for the dismissal.

The Appeal

The employee sought leave to appeal the Decision on a number of grounds, including:

  1. The Commission erred by failing to apply the Briginshaw[2] standard (standard of proof) when making findings against the employee about conduct that formed the ‘valid reason for dismissal’.
  2. The Commission erred when relying on anonymous or hearsay evidence that was admitted into evidence;

During the Investigation, the three employees advised that they would not provide a statement as they were concerned about the ongoing relationship with their workmates. One of the contentions of the employee on Appeal was that the three employees concerned had not provided evidence to the Investigation or the Unfair Dismissal Hearing, and therefore evidence considered about the effect of the email on the three employees concerned was hearsay. This included the evidence of one Manager of his discussion with an impacted employee. According to the employee this was also inconsistent in applying the Briginshaw standard.

The employee’s  appeal was refused.

Standard of Proof

The standard of proof applied to the assessment of evidence in an Investigation is the ‘balance or probabilities, as set out in Briginshaw:

‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues …. But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.

The Briginshaw standard was applied in the Investigation. The Full Bench found that there was no dispute that the employee sent the email, or to whom it was sent, or that company policies had been breached. Given this context, the Full Bench found that the question of whether or not the email had a significant effect on one or more employees could not have had a significant bearing on the ultimate question of whether the employee’s dismissal was harsh, unjust or unreasonable.

Consideration of the Evidence

Although it is not bound by the rules of evidence and procedure, the Commission tends to apply the rules of evidence under the Evidence Act 1995 (Cth) as a general guide to good procedure.[3] Also, under s577(a) of the Fair Work Act, the Commission is obliged to perform its functions in a manner that is ‘fair and just.’

In dealing with evidence of the Manager in his discussions with an impacted employee, the  Full Bench found this evidence represented ‘contemporaneous considerations about the employee’s “health, feelings, sensations, intention, knowledge  or state of mind” within the meaning of s.66A of the Evidence Act 1995,’ and observations about the employee was admissible under s.78 of the Evidence Act 1995.[4] In these circumstances, the Full Bench found that the Commission was able to make the findings about the evidence.

General Guidelines

Investigators will be required to gather, assess and consider evidence, apply a standard of proof, and reach findings and conclusions as part of the Investigation Report. This requires careful planning and information gathering.

Use the “Four W’s” as a guide:

  1. What is being investigated?
  2. Why is there an investigation?
  3. What is the Investigator required to do?
  4. Who will conduct the Investigation?

Should you have any concerns regarding your obligations towards bargaining representatives, please contact your Livingstones’ consultant on +617 3833 1200.


[1] Andrew Pearse v Viva Energy Refining Pty Ltd  [2017] FWCFB 4701

[2] Briginshaw v Briginshaw HCA (1938) 60 CLR 336

[3] Andrew Pearse v Viva Energy Refining Pty Ltd  [2017] FWCFB 4701 at page 5.

[4] Ibid page 5.

Written by John McKenzie

John McKenzie

John has extensive experience in industrial relations, employee relations and human resources. This experience includes leading change management and workplace transformation, enterprise bargaining, dispute resolution and conflict management, mergers/acquisitions, divestments and outsourcing. John also applies a very strong understanding of human resource policies, procedures and processes and has been a key adviser to central HR and HR project teams.

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