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INTERNAL DISCIPLINE INVESTIGATIONS - PART 3 (30th June 2008)
The following article covers the adjudication or decision making process and report writing of internal discipline investigations and should be read in conjunction with Parts 1 & 2 which were published in earlier LKA Group newsletters and can be found under the news and resources section at www.lkagroup.com.au
3 THE ADJUDICATION OR DECISION MAKING PROCESS
As stated earlier, it is accepted that in relation to internal investigations the strict rules of evidence, such as those applied in the courts of this country, do not apply, but there are some evidentiary principles with which investigators should be familiar when making a judgment or determination at the conclusion of any investigation.
The most important are known as the Standard of Proof, Circumstantial Evidence, Hearsay Evidence and Uncorroborated evidence.
3 (a) The Standard of Proof
“The Balance of Probabilities”
This is the standard used in civil matters to determine an outcome. It is also the standard of proof adopted in discipline investigations. It is significantly different to the Standard of Proof demanded in criminal matters where a verdict of guilt may only be reached “beyond all reasonable doubt”. Adoption of this standard means that a reasonable person should decide on the evidence whether a particular fact did occur, or did not occur, on the basis that its occurrence or otherwise was more probable than not. There is an important rider to that process, however, which is that it is necessary to be conscious of the nature and gravity of the allegations together with due consideration for the potential impact or consequences flowing from a particular finding. This concept became enshrined in Australian law as far back as 1938 by the eminent judge Owen Dixon when he enunciated the principle in the High Court decision of Briginshaw v Briginshaw (1938) 60 CLR 336. At page 362 he said:
“The standard of proof to be applied is the balance of probabilities. Whether the allegations are to held proved to the reasonable satisfaction of the delegate will depend upon the seriousness of the allegations made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding and should not be reached by inexact proofs, indefinite testimony or indirect references.”
On the basis of this definition it is submitted that, in simple terms, the graver the allegations made and hence the greater the seriousness of the consequences for an individual should a determining fact be found proven, then greater regard must be had to the nature of the evidence upon which such a finding may be made. It might be said that in such circumstances there must be greater certainty regarding the probability that such a determining event did in fact occur. This consideration would certainly apply if an employee’s employment was at stake.
3 (b) Circumstantial Evidence
On occasions investigators are provided with what is known as circumstantialevidence. Its definition varies depending upon which authority is consulted but it can be described as facts established in evidence from which other facts may, or may not, be drawn. For example, a man apprehended driving his car rapidly from the scene of a recently lit bushfire with an empty can of petrol on the passenger seat and a box of matches in his pocket maylead to a conclusion that it is more likely than not that he was involved in the ignition of the fire. It is not direct evidence and neither is that of another witness who subsequently positively identified the same man’s car driving into the forest a short time before the fire began. The reality is that the combination of those pieces of circumstantial evidence together support the strong possibility the man in question was the culprit.
This reasoning was explained by Justice Winneke in the case of Transport Industries Insurance Co Ltd v Longmuir (1997) 1VR 125 at page 128 when he said:
“In cases of circumstantial evidence each proven fact may gain support from others and although each, considered in isolation, might not provide a sound basis for inferring the ultimate fact to be proved, a combination of all facts might provide a compelling basis from which to draw that inference.”
3 (c) Hearsay Evidence
There have been many and voluminous texts written on this subject by legal
writers through the ages and it is not appropriate here to burden you with all the detail of this aspect of evidence. Put simply, much hearsay evidence is not admissible in our courts, although the Commonwealth Evidence Act does provide for some exceptions. In the situation with which we are normally concerned it is recommended that hearsay evidence as such be excluded, or at best given minimum weight, depending on the circumstances. Remember the strict rules of evidence do not apply.
The 6th edition of Cross on Evidence probably best defines hearsay evidence as follows:
“Evidence of a statement made to a witness by a person who is not called as a witness may or may not be hearsay. It is hearsay and inadmissible when the objective of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.”
For example, the statement by John that “Sally told me that Peter did it” is clearly hearsay if Sally was not called or interviewed as a witness and such evidence cannot be accepted as any sort of proof of Peter’s guilt or even involvement. At best it may indicate that Sally made that statement to John, but no more. What it does provide is the opportunity to interview Sally to ascertain whether she made such an accusation when she told John and the basis upon which she made that allegation and that interview may open up even further enquiries. Such evidence should not be entirely ignored as part of the investigative process, but without further enquiry and more direct evidence, it should not be taken into account in the decision making process.
It is not unusual in matters under investigation to be confronted with another form of evidence which can cause some concern and difficulty. It is what I will call “One against One” type of evidence or " Uncorroborated evidence”.
3 (d) “One v one evidence” or uncorroborated evidence
There are sometimes cases where one person alleges that something was said or done by another and that other person stoutly denies saying or doing whatever was alleged. There are no other witnesses to the events. In the total absence of any other evidence which may assist in the determination of the matter, the decision must be that no conclusion can be drawn as to the validity of the complaint. On the other hand if, for example, John alleges that Ken punched him in the face and John produced evidence that he attended his local doctor shortly thereafter for treatment for an eye injury, that may, and I underline may, be a factor which is relevant and could be taken into consideration.
Such matters as the immediacy of the report of the assault, whether or not John left work shortly after the event and whether he told some other person of the assault within a reasonable time after it occurred and that person confirms what John may have said are all factors which may assist you in reaching a conclusion on the matter. It is fair to say that these cases are often the most difficult to resolve one way or the other and considerable effort, care and skill needs to be applied during the investigative process to ensure a fair and just conclusion is reached.
REPORT WRITING
In the event a written report is required in which you record your decision and set out the facts upon which you have based your decision, it is critically important that such reasoning is solely based upon a careful and unbiased consideration of the relevant facts adduced during the course of the investigation. I stress the word “relevant” and “facts”.
The decision is relation to each fact under consideration must be based upon the civil standard of proof known as the ‘balance of probabilities”. It can be an onerous and demanding task, particularly when the consequences of an adverse finding against an individual may involve the imposition of a severe penalty.
Personal feelings towards any of the participants must be excluded as must any judgments regarding the presentation of a particular witness at interview. Whilst in appropriate circumstances it may be noted that a particular witness was nervous or uncomfortable, it is not permitted to draw an adverse conclusion based only upon those characteristics. For example to highlight such features and then add, “I therefore consider it more likely than not that this witness was lying”is a totally inappropriate conclusion in the absence of additional clear and relevant evidence which may lend support such a conclusion. It is a different matter to say ( in the appropriate circumstances) that “it appeared that some aspects of the evidence of this witness were inconsistent with facts provided by other witnesses” or some such similar words. Always remember the laws of libel may be invoked against you should you cross the line of objectivity and fairness.
The most difficult aspect in normal circumstances is reaching a conclusion as to what the findings might be. Such findings must be based solely on the evidence adduced when reflected against the relevant corporate policy. It can be an onerous task particularly when dismissal from employment may be the consequence of an adverse finding against an individual. Unless the evidence is absolutely clear one way or the other, considerable time can be spent reflecting upon the decision to be made. In the final report it is appropriate to set out the relevant evidence supplied by each witness and highlight evidence which may corroborate other evidence, or conflict with other evidence. At the end of the day the investigator must feel satisfied that whatever decision is reached, it is fair and reasonable to the parties involved based upon all available evidence.
In some cases the investigator may consider it appropriate to make recommendations which may improve physical aspects of a workplace, or improve communication between individuals or a change in work practices which may be of benefit to the organisation. Such recommendations should always be made when appropriate.
As a conclusion, it is usually appropriate to acknowledge that any final decision regarding the outcome, particularly the imposition of any penalty, is ultimately a matter for the determination of the appropriate senior management of the organisation.
© Copyright LKA Group Pty Ltd
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