The standard of proof in workplace investigations

Workplace investigations are an area of law that is seen as a second tranche cause of action in termination of employment matters. Frequently, allegations are raised by the former employee that the process was procedurally flawed and this raises principles of natural justice.

This can be seen in unfair dismissal matters, whereby a component of the unfairness arises from the process of the investigation leading to the dismissal. However, even though the investigation process itself may be robust, the standard of proof used to make any findings may be called into question. In other words, although you may have followed all the appropriate steps, the findings themselves may not be sound.

Another dimension

A recent case has explored the issue of the standard of proof required to make valid findings in an investigation. Can there be a third standard of proof pursuant to contract under which to make a finding during a workplace investigation? The recent NSW Supreme Court decision in the matter of Bartlett v Australian & New Zealand Banking Group Limited [2014] NSW SC 1662 decided on 24 November 2014 raised just this issue.

Briginshaw v Briginshaw are we sure?

This case is the accepted authority for the level of certainty to which allegations, in investigations, should be substantiated. It guides the interpretation of section 140 of the Evidence Act.

The often cited statement of Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362 is of importance in illustrating the point:

Fortunately ... at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.

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.

His Honour in this case was concerned with the appropriate standard of proof in respect of individual allegations of material fact, rather than with the standard of persuasion appropriate to be adopted in respect of all allegations made in a particular civil proceeding.

Of most importance to us, his Honour did not purport to identify any particular standard; rather he made plain that before accepting the truth of evidence of a particular allegation, the tribunal should give consideration to the nature of the allegation and the likely consequences which will follow should it be accepted. His Honour made the observation that the common law had not developed a third standard of proof; it acknowledges only the two standards - the criminal standard of beyond reasonable doubt and the civil standard of on the balance of probabilities or reasonable satisfaction.

The Evidence Act 1995

Briginshaw v Briginshaw was decided long before the enactment...