Is Briginshaw Still the Best Way of Solving the Puzzle?

Vince Scopelliti - Wednesday, September 19, 2018

As any HR manager will testify, conducting workplace investigations is one of the most important but vexed aspects of ensuring that an organisation runs smoothly. 

This is particularly the case when the various parties involved in an investigation are putting forward different versions of events - who do you know who to believe? For many years, workplace investigators have employed the Briginshaw test. 

The standard of proof in investigations such as these is on the balance of probabilities. The case of Briginshaw v Briginshaw (1930) 60 CLR 336 is generally regarded as authority for the proposition that if a finding, on the balance of probabilities, is likely to produce grave consequences the evidence should be of high probative value.

But how is this test applied to resolve disputes and make findings in workplace enquiries?

what is it?

The Briginshaw test refers to the civil standard of proof employed in the legal system, specifically in the 1938 divorce case of Briginshaw v Briginshaw. A 'standard of proof' refers to the evidence required by a court or, in the workplace context, an employer or investigator, to make a determination as to the likely truth or otherwise of allegations. 

Although the criminal burden of proof requires evidence to support a finding of 'beyond reasonable doubt', the civil standard only requires an assessment on the balance of probabilities - that is, whether it is more likely than not that one version of events occurred rather than another. 

In Briginshaw, the High Court warned that making a decision on the balance of probabilities does not require a purely mathematical 'weighing up' of the likelihood of one version of events being true over another. Instead, the decision in Briginshaw supports a conclusion that sufficient evidence has been provided if "the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal". In the workplace context, the tribunal determining the matter is the investigator. 

CASE STUDY - SEXUAL HARASSMENT IN CITY HALL

In workplace investigations, individuals are required to respond to allegations, as was the case with the (now former) Lord Mayor of Melbourne. In late 2017, Robert Doyle was accused of having sexually harassed two female councillors by inappropriately touching them. 

In March 2018, an investigation conducted by a Queen's Counsel was finalised, although Mr Doyle had already resigned by this time. Given the seriousness of the allegations and the potential consequences, the investigation relied on the Briginshaw test, and applied a standard whereby the investigator was 'reasonably satisfied' that the specific allegations of sexually inappropriate conduct related to Mr Doyle in his role as Lord Mayor. 

In Mr Doyle's case, the investigators accordingly based their determination on being "satisfied to a level which goes beyond the mere likelihood that something happened" that the allegations could be substantiated. 

The findings included that specific allegations were substantiated. More specifically the investigator made three adverse findings of sexually inappropriate conduct, and a fourth finding that the three matters occurred in the context of the Mayor having consumed substantial amounts of red wine. 

Factors which were taken into account in making this determination, included the likelihood of Mr Doyle having engaged in the behaviour because he had consumed significant amounts of red wine, and his credibility as a witness. The investigation also noted that one of the complainants made contemporaneous complaints and was consistent in her allegations. 

The report stated no findings had been made by a court or tribunal based on the information reported on as part of the investigation, however, if proven the behaviour could constitute sexual harassment within the Victorian Equal Opportunity Act 2010, and gross misconduct under the Local Government Act 1989.

what can we learn?

One difficulty with applying the Briginshaw test in workplace investigations, is that an investigation does not constitute a judicial process. Accordingly, participants give information on a voluntary basis only. 

This inability to compel testimony or information from witnesses may mean that a determination is made on the balance of probabilities - but without having all information available. Indeed, in the absence of a court or the threat of perjury, there is no real compulsion for accurate information to be given in a workplace investigation. Undue reliance on such information could result in an unjust determination. 

Failure to recognise the difference between a court and the role of an investigator can lead to mistakes, and allegations can be left unsubstantiated in circumstances when they may have occurred. In circumstances where the investigator is inexperienced or does not have access to all required information, it may well result in an inequitable outcome, or a situation where a conclusion is made based on partial information or poor facts. 

When a workplace or employee faces allegations, its important for the investigator to ask the relevant questions, examine documents, and analyse all relevant evidence carefully when making conclusions about what occurred. Making findings using the Briginshaw principle and explaining the reasoning behind the outcomes of the investigation can assist employers in considering what further action needs to be taken in light of the findings. 

It is important for employers and investigators to ensure that findings of workplace investigations will withstand the highest level of scrutiny. A higher level of skill will be required from an investigator when circumstantial or uncorroborated evidence is being considered. 

If you require assistance analysing evidence, or conducting an investigation, contact WISE today!  

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