Author – John Boardman, Director Workplace Relations
The more serious the allegation, the more serious consideration should be given by the decision maker, writes John Boardman, Director Workplace Relations.
Defining balance of probabilities: The Legislative Framework
Workplace investigation findings are determined based upon the civil standard of proof, being the ‘balance of probabilities’. To find that an allegation is substantiated on the balance of probabilities, the available evidence must demonstrate that it is more probable than not that the alleged conduct occurred. This is sometimes crudely put as 50% plus 1.
Findings made on the balance of probabilities need to be made with the Briginshaw principle1 in mind. Each state evidence act now incorporates the Briginshaw principle.
The Briginshaw principle is not a separate standard of proof, but rather a standard of satisfaction.
Findings on the Balance of probabilities vs Beyond Reasonable Doubt
Criminal matters require a much higher standard of proof i.e. ‘beyond reasonable doubt’. This means that the defence only needs to satisfy a court that a ‘reasonable doubt’ exists. For example, in relation to the murder trial of O J Simpson the fact that the glove did not fit his hand was sufficient doubt for him to be found not guilty.
In laymen’s terms, a finding based on the ‘balance of probabilities’ means that it is more likely than not to have occurred. A workplace investigator can still make a finding on word against word evidence i.e. ‘he said’ vs ‘she said’ as they can prefer one person’s word over another person’s word.
A Workplace Investigator’s Role when Reviewing, Assessing, and Documenting Evidence
The more serious the allegation, the more serious consideration should be given by the decision maker. Serious allegations with serious consequences require more compelling evidence for the decision maker to feel an ‘actual persuasion’ and reach the necessary state of reasonable satisfaction that the facts in dispute are more likely than not to exist.
In our experience, while many internal investigators may understand the legal definition of the balance of probabilities, they struggle with its practical application. Frequently decision makers retreat from substantiating an allegation unless they have close to the standard of proof that is required for ‘beyond reasonable doubt’.
Where to next?
As inappropriate workplace behaviours come to light in your organisation, it is crucial you have robust complaints and grievance handling processes in place.
- Prepare your employees to take on the role of a contact officer who can talk through suitable intervention options and offer support services to victims that raised a complaint.
- Upskill your HR professionals and internal WHS teams to be trained to run investigations internally.
- Review your internal policies, procedures and processes.
Alternatively, you can engage us to conduct investigations to ensure fairness, confidentiality, and impartiality.
Resources
Briginshaw v Briginshaw [1938] HCA 34 – 60CLR 336
