How Medical Evidence Supports an Unbiased Investigation

Vince Scopelliti - Wednesday, November 01, 2017

When claims of abuse in care come to light, strong emotions can arise for all concerned. It is not surprising that when an unexplained injury is uncovered, family members, care staff, and employers will want immediate answers. 

However, it is vital that employers maintain clear thinking and remain objective when investigating allegations of abuse in care. 

Engaging an external workplace investigator can be helpful in maintaining neutrality, and conducting a detailed, unbiased investigation. Medical evidence is also highly relevant in these situations as it is collected in a scientific manner, without bias towards a particular party.

zero bias when investigating assaults 

In emotionally charged situations, family and friends may understandably demand immediate answers about the cause of a loved one's unexplained injury. When abuse appears to have occurred against a vulnerable individual, it is a disturbing thought for all involved. 

Workplace investigators understand that despite - or perhaps because of - such high emotions, the investigation must be coordinated and managed with an extremely steady hand. 

An experienced investigator will be acutely aware of the rules of evidence and how important the accurate collection and management of the evidence will become, should the matter be taken on review. Accordingly, from the very start of an investigation, it is understood that all information, statements, workplace documents, interviews and clinical data is to be gathered with a view to fairness, objectivity and clarity.

assessing medical evidence

Family members of the vulnerable person affected by the unexplained injury may not be aware of the detail of the circumstances of the injury. 

Factors such as the site of an unexplained injury, medical history and medications, client age, frailty and demographics, unique aspects of accommodation and access, care routines, staffing variables and medical documentation - to name a few - will all form part of the complex medical evidence matrix when evidence is being assessed. 

Delays in getting the victim medically examined or a delay in reporting incidents can often mean that the medical expert may need to rely on descriptions provided by witnesses or photographs taken of the injury. This will significantly diminish the quality of the medical evidence. Poor quality photographs and descriptions will make it even more difficult to obtain any reliable medical evidence. 

The standard of proof in investigations such as these is on the balance of probabilities. The case of Briginshaw v Briginshaw (1938) 60 CLR 336 is generally regarded as authority for the idea that on the balance of probabilities, if a finding is likely to produce grave consequences, the evidence should be of high probative value.

In cases of alleged assaults in care, professional investigators will ensure that all evidence - medical and general - is collected and reported on with utmost care. This approach ensures that irrelevant factors are not given weight. 

When the medical evidence is combined with overall procedural fairness across the investigation, the resulting investigative report into an alleged assault will be of high quality and robust in terms of the weighing of the evidence and findings.

    why an impartial investigation is important

    When investigating abuse in care, the standard of evidence obtained is a crucial factor. By including sound medical evidence, the investigator brings an unbiased and highly detailed viewpoint to the allegations of assault. This expertise can mean the difference between a fair and objective investigative report and one that is tinged by the emotionally charged nature of the situation. 

    Should the matter be taken on review, the court will apply the 'reasonable person test' to the facts and evidence available. If the investigation is not fair, clear and comprehensive, then the court may find the resulting report does not meet this standard. 

    If your organisation requires a workplace investigation into an unexplained injury, our team can assist with either full or supported investigation services. WISE are highly experienced in the complexities of investigating unexplained injuries in care settings, including the assessment of medical evidence.

    What Evidence Should Be in a Workplace Investigation Report?

    Vince Scopelliti - Wednesday, August 23, 2017

    In every workplace, there will eventually be a situation where an investigation needs to be carried out into an employee's compliant or conduct. One of the most crucial aspects of conducting workplace investigations includes preparing an investigation report which can be relied upon for any future purpose, including carrying out and implementing disciplinary action against an employee.

    WHAT IS the purpose of an investigation report?

    An investigation report is intended to provide a 'snapshot' for external entities, such as auditors, judges or tribunal members, or the police; of the allegations made, the likely accuracy of the claims, the background circumstances surrounding the alleged behaviour or occurrence, and the likely consequences imposed once any findings have been made. 

    Broadly, the investigation report is created in order to: 

    • Form the basis of any future action, such as disciplinary proceedings or strategic direction. 
    • Record the conduct of the investigation objectively (in particular to avoid allegations of bias or a lack of procedural fairness)
    • If necessary, be produced in legal investigations, or proceedings. 
    • Record observations and other data surrounding employee attitudes and experiences. 

    ELEMENTS OF A GOOD INVESTIGATION REPORT

    It is essential that every investigation report: 

    • Is set out in an organised fashion. This includes, for example, ensuring the inclusion of page numbers and an index so that information can be readily sought. 
    • Is internally consistent and can stand-alone, meaning that the report itself makes sense and is complete without having to refer to extraneous documents of information
    • Objectively documents findings and recommended actions, without any bias or undue influence. 
    • Identifies whether allegations were ultimately grounded in fact or were simply unfounded. 
    • Alternatively it may also identify if there is insufficient evidence to make a finding. 

    In areas legislation, regulations or specific policy and procedures particularly with some government departments, the investigation and reporting requirements can be more onerous and prescriptive where there may be higher level oversight.

    In general today, it is increasingly critical to ensure that an investigation report is properly completed - certainly this is to demonstrate that the instructing entities use best practice in all investigation reports created in consultation with employees. 

    The role of briginshaw

    In matters where there could potentially be criminal implications, other serious outcomes, or adverse findings, it is crucial that an investigation report have regard to a legal concept known as the rule of Briginshaw v Briginshaw

    This means that the decision maker must be satisfied that the seriousness of allegations is weighed up against the potential consequences of adverse actions or findings. This highlights the importance of putting only relevant matters into an investigation report. 

    how should an investigation report be set out?

    From a practical perspective, it makes sense to stick to a fairly rigid structure in drafting every investigation report - particularly because this regime will enhance the objectivity of any finished report. 

    This structure should include:  

    • An executive summary - so that the key findings and recommendations are immediately clear and identifiable. In many cases this is the only part read by outsiders, so it is essentially that the key information is contained in the summary in the 'punchiest' way possible.
    • A methodology - in order for the reader to understand what process the author went through to complete the report. 
    • An identification of the standard of proof against which the report has been drafted and the allegations have been assessed. Outside of the criminal world, the civil standard is assessed according to the balance of probabilities: that is, whether it is more likely than not that a certain behaviour or alleged fact took place as claimed. 
    • Key evidence being relied upon in relation to each allegation/particular. 
    • An analysis of the evidence that supports any findings made. 
    • Other issues which may be relevant to the investigation itself or the ultimate determination. 
    • If appropriate, recommendations for future conduct.

    What is the role of evidence in investigation reports?

    Items of evidence which should be contained in an investigation report include:

    • Witness statements and/or transcripts of interviews
    • Physical evidence such as photographs of injuries or the debris of a broken item.
    • Documentary evidence such as incident reports or contemporaneous file notes.
    • Electronic evidence including emails, text messages and CCTV footage.
    • Expert reports such as medical reports
    • Other documentary support evidence such as rosters, timesheets, fuel cards, behaviour support plans, client profiles etc. 

    Crucially, the evidence should be relevant and sufficient to support any findings.

    Relevance may be determined by employing the following assessment, as set out in the decision of Robinson v Goodman [2013] FAC 893

    a) What facts are disputed, and what the collated evidence tends to prove or disprove.

    b) Whether the evidence provided might be indicative of the fact that person will tend to behave in a certain way. When relying on so-called tendency evidence, it is essential that the potential consequences of claiming that somebody has a tendency to behave a certain way are weighed up against the potentially damaging suggestion that a person's past behaviour should dictate whether they have acted in that way again.

    Although workplaces are entitled to maintain confidentiality over investigation reports, in most cases, there are certainly circumstances where the reports may be ordered to be handed over to the complainant or the other party. 

    This was the case in the decision of Bartolo v Doutta Galla Aged Services (July 2014), where the Federal Circuit Court ordered the waiver of legal professional privilege over investigation reports completed by external lawyers. 

    The court's decision to produce the reports was due to the fact that an employee had been dismissed on the basis of information set out in the investigation reports. It was therefore clearly incontestable that the report was not relevant to the outcome complained of by the former worker.  

    potential consequences of a poorly drafted investigation report

    Given that an employee's life can be significantly affected by the conclusions drawn in investigation reports, there is high potential for outcomes to be referred for legal proceedings. 

    As this is a likely possible outcome, it is important to make sure that any workplace investigations are determined according to the minimum standard on which the court will rely. That is, satisfying the court on the balance of probabilities that a reasonable person would consider it more likely than not that events occurred as described by the complainant or the worker. 

    Properly prepared investigation reports are very similar to briefs of evidence prepared by counsel during court proceedings, and can be complicated and challenging documents to create. WISE Workplace provides training designed to assist you with the conduct of workplace investigations and drafting reliable reports. Our team can also conduct investigations for you. Contact us today. 

    The Year that Was: Lessons from 2015 Part 2

    Jill McMahon - Monday, January 25, 2016
    Lessons from 2015 Part 2

    Here at Wise Workplace, we’ve been focused recently on reviewing the past in order to learn for the future. Last week’s blog, part 1 of our two-part series on lessons employers can take from 2015, highlighted some important case law around the themes of bullying and the definition of ‘at work’.  

    In part 2, we take a look at important decisions in other areas of workplace law, including workplace culture and procedural fairness, and the implications for employers. 

    Workplace culture and its impact

    When it comes to workplace culture, alcohol seems to be a key feature – and an increasingly vexing issue for employers.

    In the NSW District Court matter of Mitchell-Innes, a manager attended a conference still drunk from the night before. He disrupted part of the session and his employment was later terminated for gross misconduct. 

    The court found that alcohol consumption was entrenched in the workplace culture, and this meant that the employee’s conduct was not serious enough to warrant termination of employment. 

    Similarly, Keenan’s drunken behaviour during and after the office Christmas party led to the termination of his employment. 

    Both cases found that misconduct would be harder to establish when there was a culture of drinking in the workplace, including after-hours functions. 

    In Keenan, the FWC listed some steps of caution that a reasonable employer should take in trying to stop things getting out of hand, including ensuring that alcohol service is restricted, and employees are aware of employer expectations of behaviour. 

    Overstepping the mark

    2015 also saw cases of workers being unfairly punished for a third party overstepping the mark.

    In Amiatu, employees were accused of theft. Their union representative persuaded the company to allow them to resign rather than be terminated. The employees later claimed they were coerced to resign because they feared police involvement. The FWC held that the union representative failed to act in the best interest of the workers, even though the employer had reasonably believed it had negotiated an outcome.

    This is a reminder to employers to be careful about negotiating with employee representatives, especially when the employee is not present. 

    In the case of BQY, systems designed to protect went too far. A female student teacher had allowed a former student to kiss her some time after she had finished her placement and after the boy had turned 18. She was subsequently refused a clearance to work with children by the Children’s Guardian, placing her teaching career in jeopardy. On review, it was found that she was not a threat to the safety of children, and she was granted the clearance. 

    Procedural fairness and standard of proof

    No workplace investigation is of value unless it is undertaken properly, so it is no surprise that procedural fairness featured prominently as a theme last year. 

    In Amiatu, as well as the union overstepping the mark, the FWC found that the employer had not uncovered enough evidence to prove allegations of theft and had failed to objectively assess the matter. The Elton case concerned an employee’s alleged suspicious behaviour. The FWC found there was a reasonable explanation for the employee’s conduct, and the employer did not have enough evidence to support the allegations. 

    Both cases are a reminder that evidence must be carefully assessed and all possible options and explanations considered. Engaging an independent investigator is often an excellent way to achieve this.

    In Willis, there was some confusion about whether the employee was being performance managed or disciplined. The FWC found that employers must be clear about the process from the outset, and that any action taken against the employee must be a proportionate response to their conduct.  

    The NSW Supreme Court case of Bartlett found that the employer could effectively set its own standard of proof, depending on the wording of the employment contract in question. It will be interesting to see how this decision is subsequently developed, as it seems a significant departure from the usual standard of ‘on the balance of probabilities’. 

    A timely reminder

    These employment law decisions of 2015 serve as a good reminder of the fundamentals for disciplinary matters or termination of employment: 

    • Investigate properly and fairly.
    • Maintain objectivity. 
    • Act within authority.
    • Foster a workplace culture that is safe and healthy for all.

    Keeping these things in mind, we hope that our clients enjoy a happy and prosperous 2016!  

    The Year that Was: Lessons from 2015 Part 1

    Jill McMahon - Monday, January 18, 2016
    Lessons to be learned from 2015

    It’s a good time to take stock and reflect on the year that was. The cases that hit the headlines in 2015 had some important messages for employers with some common themes.   

    In this article, the first in a two-part series, we will look at how the Fair Work Act’s definition of 'at work' has been developed and also how bullying issues have evolved.   

    In our next article, we will look at case law covering the themes of workplace culture, procedural fairness and what can happen when an authority oversteps the mark.   

    When is employee conduct considered to be 'at work'?

    One of the hallmarks of the Fair Work Act is that the employee conduct must have occurred 'at work'. In Bowker, the Fair Work Commission (FWC) considered whether posting comments on social media could be considered 'at work'. It found that it was not a question of when the comments were posted but rather when they were accessed by the targeted workers. If access occurred while they were at work, it was a sufficient connection.    

    In another matter that considered an application for a Stop Bullying Order (SBO), the FWC seemed to extend the Bowker decision, saying that cyberbullying could happen anywhere. If the parties were connected on Facebook because of their work relationship, that was 'at work'.   

    In Keenan, drunken and offensive behaviour during and after the office Christmas party led to termination of employment. The FWC found that the party was a sanctioned company event and therefore the conduct occurred 'at work'.   

    Although Deeth was charged with a serious criminal offence unconnected with his work, his employer terminated his employment. The FWC found that the alleged criminal conduct alone was not a valid reason to dismiss because it was not 'at work'. There needed to be a proper investigation establishing a connection with the employee’s work.   

    These cases are varied in their factual circumstances, but they serve as useful reminders to employers that:   

    • 'At work' includes social media activity. It appears that the law will develop to the extent that an online connection between two work colleagues will be sufficient to satisfy the requirement.  
    • Employer-sanctioned Christmas parties and after-hours events are considered to be 'at work' and employers should take reasonable precautions to ensure they are without incident. 
    • Even criminal charges won’t give rise to an automatic right to terminate employment. Procedural fairness is paramount – there must be a proper investigation, as we will explore in Part 2 of this series.    
    Developments in workplace bullying

    For good reason, workplace bullying remains a hot issue. A happy workplace is a productive workplace but even so, it seems there are ever increasing ways for bullying to occur.   

    In 2015 the FWC issued its first formal ruling for an SBO since the new legislative provisions came into effect. Two employees complained of bullying conduct by a manager. There was an informal investigation, an unsuccessful mediation and ultimately the manager resigned but was later seconded back to the workplace.  

    The FWC found a real risk to the workplace health and safety of the workers and that the employer had not taken the issue seriously.  The FWC issued orders, to remain in force for two years. As we have already seen, the cases of Bowker and a subsequent SBO application dealt with the very serious and growing issue of cyberbullying. In its decisions, the FWC has made it clear that employers have a duty of care to ensure the workplace health and safety of all employees and this includes in online and social media environments.   

    Employers must:   

    • Take seriously any complaints concerning the conduct. 
    • Take immediate action to stop the conduct. 
    • Have proper policies and procedures and educate all staff about appropriate conduct. 

    What constitutes an employee being 'at work' and the ever expanding realm of workplace bullying continues to dominate the case law landscape. It is clear that employers must remain vigilant in monitoring employee behaviour and educating all staff about appropriate conduct, particularly online. These issues are, in short, a product of our modern world, and there are important lessons to be learned from these cases. 

    No Proof: The Key Role of Circumstantial Evidence

    Jill McMahon - Monday, December 14, 2015
    No Proof: The Key Role of Circumstantial Evidence

    The issue of circumstantial evidence can often arise in workplace investigations, and there can sometimes be confusion about how to handle it. 

    We take a look at the role of circumstantial evidence in this article, and our latest free white paper 5 Principles of Applying Circumstantial Evidence in Workplace Investigations also delves deeper into what can be a vexing issue for employers.

    Direct versus circumstantial evidence

    In some workplace investigations, there is no direct evidence. That is, there are no witnesses or other evidence directly linking the employee to the alleged misconduct. Yet there can often be indirect or circumstantial evidence, for example: 

    • Witness accounts that show a pattern of behaviour, for example an employee regularly being seen at the site of an alleged incident. 
    • Swipe card records that reveal an employee’s regular use of a particular exit at a particular time.     

    This kind of evidence can create an impression that the employee was involved in the incident. However, in workplace investigations, a feeling or impression is not enough for the investigator to be satisfied as to guilt. 

    Whether available evidence is direct or circumstantial, allegations in workplace investigations are determined according to the civil standard of proof, known as the balance of probabilities.

    Balance of probabilities

    In essence, the balance of probabilities means that the investigator must determine that it is more probable than not that the events occurred. This may require the investigator to compare competing versions of events from various witnesses to determine which version is more probable. 

    But Australia’s High Court has determined that there is more to the standard than this simple formula. In the famous case of Briginshaw v Briginshaw, the High Court held that a court should not lightly find that a serious allegation has been proved from circumstantial evidence alone. The High Court has since determined that there are no hard and fast rules in determining circumstantial evidence and the question is simply whether the allegation has been proved on a balance of probabilities. However, the NSW Court of Appeal has highlighted five principles surrounding the use of circumstantial evidence, which are available in our free white paper.  

    Applying the standard of proof

    In the context of a workplace investigation, consider a scenario of alleged time sheet falsification, where there is evidence that: 

    • The employee under investigation consistently failed to complete projects on time. 
    • Phone records showed regular outgoing calls from the employee’s assigned mobile phone during work hours from non-work locations at around the end of school hours. 
    • The employee’s children attend a school in the same area in which the phone calls originated. 

    The question is whether it is reasonable to infer from this circumstantial evidence that the employee regularly attended to personal matters during work hours, for example: 

    • Collecting children from school. 
    • Failing to return to work, even though the timesheets show that they worked an eight-hour day. 

    The employee might respond to the allegations by saying that: 

    • They cannot remember making any phone calls at a regular time to a regular place. 
    • They sometimes lent their phone to close family members who could have made the calls. 

    In this case, the investigator should consider the pattern of behaviour revealed by the outgoing telephone records and determine whether it is probable that the employee’s relatives made these phone calls. The more serious the allegations, the more carefully the evidence should be considered before reaching a conclusion. 

    In this situation, the investigator would interview all possible witnesses to try and find some direct evidence. If there is none and the view is that the circumstantial evidence is not strong enough, the employer may consider hiring a private investigator to determine what the employee does when they leave work each day.

    Handling circumstantial evidence

    It’s not ideal to be dealing with only circumstantial evidence when conducting an investigation. Witnesses and documents are very useful and as they are direct evidence, they carry much more evidentiary weight. But in circumstances where there is no direct evidence, as much circumstantial evidence as possible should be collected and analysed. If relying solely in circumstantial evidence in an investigation, proceed with great caution and seek advice before determining the outcome of the investigation. 

    First Cab off the Rank? Interviewing Respondents

    Jill McMahon - Monday, November 23, 2015
    Interviewing Respondents in Workplace Investigations

    Even the simplest of workplace investigations can be a tricky balancing act. You need to consider how to investigate the matter, collect evidence and adhere to various laws, all the while having regard to employee welfare and the needs of your organisation. 

    Strategy is a key element of a successful investigation. One important question to consider, especially when investigating a complaint, is when to interview the respondent. 
    Investigation fundamentals
    At its core, the purpose of a workplace investigation is to establish the facts of the incident or issue. 

    Investigation plans are essential, and because every circumstance is unique, every investigation must have its own specially formulated plan. But every plan must have three common threads:

    1. Procedural fairness
    2. Gathering as much evidence as possible
    3. Ensuring that all relevant issues have been properly explored

    Having regard to these three issues when planning the investigation necessarily involves a consideration of when to interview the respondent. There is no “one size fits all” answer, but there are a number of considerations that may help you make a decision about your approach.

    Advantages of interviewing the respondent first

    Interviewing the respondent at the start of an investigation has a number of advantages. 

    For example, when an allegation is made, procedural fairness requires that an investigation is conducted in a timely manner. If the respondent admits the allegation straight away, the matter can be dealt with quickly and perhaps without involving other parties. 

    This increases efficiency and minimises stress on the respondent and complainant. It also cuts down on management time spent investigating, and there is a greater chance of confidentiality being preserved because fewer parties are involved. 

    In the course of an investigation, there will often be more than one interpretation about what has happened. There may be motivating factors of which you, or other witnesses, are unaware. 

    Putting allegations to a respondent at the outset may provide new avenues for investigation that would otherwise have been unknown to you. For example, the respondent may have been provoked by another person. 

    Interviewing a respondent at the beginning is a good way of getting all the cards on the table so that you can fully comprehend the issues and refine your investigation plan.

    Disadvantages of interviewing the respondent first

    Putting allegations to a respondent must be done in a way that does not undermine procedural fairness. One of the difficulties of interviewing the respondent first is that you are putting forward unfounded allegations. So special consideration must be given to the manner in which the allegations are presented. 

    Putting forward unfounded allegations risks the respondent becoming upset or uncooperative, and may also make it difficult to narrow the key issues to be investigated. These things may increase the time it takes to investigate the matter. 

    Another problem is that the employer is putting forward allegations without being aware of all the circumstances leading to the alleged conduct. This may undermine the investigation process – if new information later comes to light, the respondent has not had an opportunity to address it. This puts the reliability of the investigation under threat for lack of procedural fairness.

    The employer could recall the respondent at a later stage in the investigation, but in the interests of fairness to the respondent and cost efficiency to the business, it is always a better course to interview each person just once. 

    Another issue is the potential conduct of the respondent after being interviewed. If the allegations are denied, there may be a risk that evidence is tampered with or destroyed, or witnesses are colluded with or threatened. If you have already collected the evidence, there is less risk of this happening. 

    The need for a strategy

    When it comes to the timing of interviewing a respondent, there is no uniform answer for every situation. The best approach is to design a strategy to fit the circumstances. This is just one of the reasons why workplace investigations can be complicated and difficult. With experience comes increased knowledge, which is why workplace consultants are invaluable in navigating you and your organisation through the process.

    NEED A SPECIALIST?  ENGAGE AN EXPERT
    WISE Workplace provides expert investigators to help conduct investigations into complaints of bullying and harassment as well as a variety of training courses to assist organisations to prevent and respond to complaints.  See below for upcoming course dates.
    CONDUCTING WORKPLACE INVESTIGATIONS - ADVANCED
    Location: Melbourne
    Date: 1-3 December


    How does Briginshaw vs Briginshaw affect the balance of probabilities?

    Jill McMahon - Tuesday, October 29, 2013

     

    Last week, I looked at how the 1938 divorce case of Briginshaw vs. Briginshaw has significant impact on workplace investigations today. This week, I look at the importance of the balance of probabilities and applying Briginshaw in practice.

    The balance of probabilities

    Usually the role of an investigator is to determine whether alleged events occurred.  To do this, the investigator needs to determine whether there is a sufficient amount of evidence to prove allegations. The amount of evidence required is known as the “standard of proof”.

    The standard of proof differs between civil and criminal matters. Case law has established that in civil matters, the standard is the “balance of probabilities”. This is a lesser standard than the proof required for criminal matters. (Criminal allegations must be proven “beyond reasonable doubt”).

    But in Briginshaw v Briginshaw (1938) 60 CLR 336, the High Court cautioned against a purely mechanical comparison of mathematical probabilities and stated at pages 361–2 that the balance of probabilities test requires the tribunal to:

    "feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality … [A]t common law … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal."

    Applying Briginshaw in practice

    Subsequent cases have applied the Briginshaw principle when, depending on the nature of the allegation, the strength of the evidence required to meet the standard of proof in civil cases may change. However, the civil standard of proof is always the balance of probabilities (see the joint judgment of Mason CJ, Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd  (1992) 67 ALJR 170 at 170 – 171).

    De Plevitz (2003) categorises the types of cases where the Briginshaw principle has been applied as follows:
    1.    where there are allegations of serious misconduct including:

    • sexual abuse of children
    • contested wills where it is alleged that one party who stood to inherit under the will had murdered the deceased person
    • gross medical negligence
    • fraud and
    • serious and willful misconduct warranting dismissal from employment.

    2.    where the outcome of the decision may be irreversible including:

    • decisions by mental health tribunals which could result in a loss of personal liberty
    • sterilization decisions
    • determinations of whether a person is Aboriginal and thereby entitled to stand as  a candidate for election to the (now defunct) Regional Council of the Aboriginal and Torres Strait Islander Commission (ATSIC)
    • striking off doctors or lawyers from their professional rolls

    De Plevitz notes that the Briginshaw “standard of proof” has been adopted by all Australian anti-discrimination jurisdictions, based on the general belief that any allegation of discrimination or harassment is a “serious matter”.

    However she cautions that this approach is not warranted in every discrimination case. When deciding whether to apply Briginshaw, investigators should take the two-step approach of the Equal Opportunities Division of the New South Wales Administrative Decisions Tribunal in the unreported decision of Dutt v Central Coast Area Health Service [2002] NSWADT 133 (6 August 2002) as follows:

    1. Look at the nature of each allegation and asked whether it would have reasonably foreseeable adverse consequences for the livelihood or reputation of the respondent?
    2. If so, then and only then, apply the Briginshaw test.

    Where allegations could have serious consequences for the alleged perpetrator, the question of the strength of the evidence required will depend on the facts of each investigation. However, as a rule of thumb for investigators, circumstantial or uncorroborated evidence warrants a closer look at all the facts to determine if there is anything else to substantiate the allegations.

    References:
    De Plevitz, L., (2003). 'The Briginshaw 'Standard of Proof' in Anti-discrimination law: Pointing with a wavering finger' Melbourn University Law Review 13