The Briginshaw Principle: Where allegations may result in dismissal, recent cases highlight the need for solid evidence to justify a finding of ‘proven’
Regular readers will know that the central pillars of a rigorous and legally defensible workplace investigation are the principles of procedural fairness, in particular providing ‘natural justice’ to any employee responding to allegations. Investigators also need to be aware, however, that where the allegations are serious and may result in dismissal of an employee, the ‘Briginshaw’ principle applies: Briginshaw v Briginshaw (1938) 60 CLR 336. This means that, while findings of fact in workplace investigations are made on the ‘balance of probabilities’, more serious allegations require an adverse finding to be supported by strong evidence.
In such matters a finding “should not be produced by inexact proofs, indefinite testimony, or indirect inferences” or “by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.”
Recent cases applying the Briginshaw Principle
Two recent cases have applied the Briginshaw principle, in both cases finding that the evidence gathered during the investigation did not provide an adequate foundation for a finding that would result in dismissal:
Kumari v Metro Trains Melbourne [2017] FWC 605
In this case, Alka Kumari, who was employed as a Station Officer at Parliament Station, was dismissed for ‘cloning’ faulty Myki cards and reselling them, taking the $6 fee for herself. She successfully argued unfair dismissal under the Fair Work Act 2009, on the basis that the investigation (and evidence gathered) was insufficiently rigorous.
Commission Wilson found that there were assumptions or inferences forming the basis of the finding of fraud/theft which had not been ‘bedded down’ by the investigator. These included:
- There was no video (e.g. covert surveillance) or eye witness evidence (of employees or customers) that Ms Kumari had personally engaged in the alleged fraud, the evidence being solely based on electronic records. The employer had concluded that because 88 irregular transactions had occurred on the respondent’s ID, that the respondent was solely responsible, whereas it was possible that the respondent’s ID could have been used by another person, while she was on a break, attending to incidents or doing training;
- No other employees or customers were interviewed about Ms Kumari’s behaviour or asked who may have engaged in the transactions (if not Ms Kumari);
- Ms Kumari was not interviewed in detail about the shifts she worked or the dates and times of the irregular transactions, and was not shown CCTV footage that was said to implicate her;
- While documents were provided to Ms Kumari in interviews, none were left with her to consider; and
- The investigator assumed that Ms Kumari had sold the cards for personal gain (whereas she could have given them away).
In short, Commissioner Wilson found that the investigation was insufficiently rigorous to provide a basis for Ms Kumari’s dismissal, in particular in light of the seriousness of the allegations (fraud indicating criminal and moral wrongdoing) and her strenuous and repeated denial of the allegations:
‘The case is built upon inferences to be made because circumstances suggest that such is the case. While it may be superficially attractive to conclude that 88 irregular transactions performed under the one staff ID must have been performed by the staff member to whom that number is assigned, such would be an erroneous conclusion to make. It would depend upon too many inferences to be reliable. Those inferences would include that only Ms Kumari could have been responsible for the transactions; and that reasonably the alternatives she put forward of another staff member using her ID, or of system or personal error, could not have reasonably occurred.’
White v State of Queensland [2017] QIRC 041
In this case, Allan White, an Enrolled Nurse in the Surgical Unit at the Rockhampton Hospital, was dismissed for inappropriately touching a male patient during a routine post-operative checking procedure. Mr White successfully claimed unfair dismissal in the Qld Industrial Relations Commission. Deputy President O’Connor found that, applying the ‘Briginshaw’ principle, the investigation had not been sufficiently rigorous having regard to the seriousness of the outcome for Mr White:
‘…the information gathering process was uncontrolled and ad hoc and the “investigation”, such as it was, lacked rigour and the degree of objective analysis necessary when considering whether an employee’s employment should be terminated.’
The initial complaint came from a patient who told the Registered Nurse on duty, Ms Jacques, that he “…felt that he [Mr White] was fiddling with the drainage tubs in the groin area for a bit longer than he felt was necessary.” The RN (Ms Jacques) then asked Mr White not to care for the patient from that point. RN Jacques did not record any incident, and took no further action at the time to escalate the matter. However, the patient then made an anonymous written complaint which was actioned by senior management, with the resulting enquiries (undertaken by a Nurse Unit Manager, Dr Lynette Jamieson) leading to the dismissal of Mr White.
Deputy President O’Connor found that the shortcomings in the process undertaken by Dr Jamieson were found to include:
- No formal investigation was in fact undertaken, and no written report was produced. As a result, all information collected was not done under the auspices of a disciplinary process.
- In addition, the enquiries taken included the following flaws:
- When Dr Jamieson contacted the patient (under the guise of a post-discharge phone call rather than in the role of investigating the complaint) she did not take a detailed statement from the patient, or provide a copy of the file note to the patient for him to confirm its accuracy or otherwise;
- When Dr Jamieson spoke to RN Jacques for the purpose of discussing the patient “complaint” she did not provide her with a copy of the patient notes and did not subsequently provide her with a copy of the file note to confirm its accuracy or otherwise;
- While Dr Jamieson spoke to the patient again after this, she did not contact RN Jacques again to seek her response to inconsistencies with the latter account given by the patient;
- Dr Jamieson did not speak to Mr White in the course of her enquiries nor seek his response to the matters raised by other “witnesses”.
What does this mean for employers & investigators?
The take home message for employers and investigators is that the steps taken in an investigation that forms the basis for dismissal of an employee will be held to a very high standard if it is subsequently challenged, for example in an unfair dismissal case.
While the flaws in the investigation process in White v State of Queensland [2017] QIRC 041 are reasonably evident to an experienced investigator, the perceived flaws in Kumari v Metro Trains Melbourne [2017] FWC 605 are less obvious.
What can be taken from the case is that the ‘Briginshaw’ principle requires that an electronic or paper trail alone will be insufficient to provide the basis for a finding of dishonesty or fraud on the part of an employee. By implication, different types of evidence were required in that case before making an adverse finding against Ms Kumari, including verbal witness evidence.
