Regular readers (and investigators) will know that, in a workplace investigation, findings of fact are made on the available evidence and on the balance of probabilities (‘more probable than not’). In doing so, the ideal scenario in making findings is to have ‘direct’ (eye witness) evidence that is corroborated by other evidence. Still more ideal would be that the corroborative evidence is itself also direct evidence, rather than second hand (e.g. hearsay evidence).
The least ideal situation in which to make findings is where the only evidence available is the complainant’s evidence that the alleged behaviour happened, together with the respondent’s evidence that it did not; in other words, ‘he said, she said’ evidence (or any variant of ‘he’ and she’).
Can a finding be made?
Before discussing the finer points of this situation, one misconception should be cleared up, which is the assumption that in such situations a finding can never be made because there is nothing to tip the balance in favour of either party.
This is not the case. Depending on the facts and the evidence, a finding can sometimes be made, and that may include a finding against the respondent. The caveat to this (and it is a strong one) is that particular care must be taken in evaluating the evidence. In particular, where the allegations are serious and may result in dismissal of the respondent, the ‘Briginshaw’ principle applies. Briginshaw requires that a finding in such a case is supported by strong (or high quality) evidence, and is not subject to “inexact proofs, indefinite testimony, or indirect inferences”. The extent to which a finding against a respondent can be made without corroborative evidence will depend on the facts of each particular case.
In any ‘he said, she said’ situation, we need to really dig down into the evidence of both parties.
In doing so, we also need to introduce the concept of ‘credibility’ into our considerations. In essence, a party’s evidence is considered credible if it is likely to be truthful, and lacks credibility where it is unlikely to be truthful. This sounds simple but often the end result will be contrasting shades of apparent credibility rather than black and white, and in certain investigations a finding may rest only on this. It is worth pointing out that assessment of credibility in not a ‘dark art’ or something shady. The Evidence Act 1995 (Cth), which governs the use of evidence in the Courts in Australia, provides that relevant evidence includes evidence as to the credibility of a witness: section 55(2).
How to test the credibility of evidence?
Our first resource is where the party gives evidence (and ‘tells their story’) more than once. This presents the opportunity to compare the various iterations of their story, to identify any inconsistencies or illogical matters. There may be a written complaint that initiates the investigation, a written response, and one or more live interviews.
There is also the opportunity, after the initial evidence is gathered, to put contradictory evidence to one or both parties. If this evidence is put to a party in real time in an interview, their initial response can also be a valuable source of information that can add to that party’s overall ‘credibility profile’. For example, a party may be evasive in responding to contradictory evidence, or provide an unlikely explanation, or provide evidence that contradicts their earlier evidence.
We can also assess the credibility of a single piece of evidence, for example an interview. But be wary of irrelevant considerations here. A witness who appears confident and communicates clearly is not necessarily more credible than one who appears nervous, sweaty and avoids eye contact. Remember that the prospect of a workplace investigation, and confronting an external ‘authority’, can make anyone nervous.
The following questions are however useful to ask ourselves about an interview:
- How clear and consistent was the evidence?
- Did the party tell their story consistently in different ways?
- Did they answer questions spontaneously, directly and with detail?
- How logical was their evidence. having regard to the factual circumstances?
- Did the party use exaggerated or emotive language?
One note of caution regarding an apparent lack of memory. There can be good reasons for this which do not indicate that a party is being deliberately evasive. For example: the passage of time; stress and poor mental health; a complainant will often recall an incident in more detail than the respondent because it was ‘memorable’ to them, but in other cases with alleged victims of serious sexual harassment, the ability to recall specific events can be affected by trauma. Each scenario must be evaluated on its own terms.
Finally, it is very important that if you include a relative assessment of credibility in making your findings, you clearly state this in the investigation report, and of course also mention and consider the Briginshaw principle.
Workplace Investigations Book, 3rd Edition !
As part of our celebration of the launch of our third edition, we are running a four-part series, “Meet the Authors”. In each of these short audio chats, we are taking a deep dive into some of the hot topics in the latest edition.
About Tom Henry
Tom is highly experienced in undertaking large and complex workplace investigations and reviews, including managing client and stakeholder expectations in matters requiring particular sensitivity, confidentiality and care.
He has led a large number of challenging, highly technical workplace investigations and workplace reviews. He has significant experience across the corporate and public sectors, including industrial, mining, construction, energy and communications, through to the health and tertiary education sectors.