For those involved in workplace investigations, one court case seems to be of central importance – Briginshaw v Briginshaw. Interestingly, this 1938 case is actually about alleged adultery in the context of divorce! So the question immediately arises – why do the concepts in Briginshaw seem to hold sway in the context of workplace investigations?
In a nutshell, the Briginshaw principle acknowledges that evidentiary requirements in civil cases will necessarily vary, depending upon the gravity of allegations made. Yet it is also important to know the difference between Briginshaw and the actual standard of proof that applies in all civil cases, such as workplace wrongs – namely the balance of probabilities.
IS THE BALANCE OF PROBABILITIES THE SAME THING AS BRIGINSHAW?
To speak of the Briginshaw ‘standard’ can cause unnecessary confusion. It is the balance of probabilities that is the standard of proof in civil matters, such as workplace disputes. The Briginshaw principle simply helps courts and tribunals to evaluate available evidence when considering this standard – particularly where serious accusations are made.
Think of the types of grave allegations or proposed actions that can occur in civil contexts: child sexual abuse, the need to deprive a mental health patient of their liberty, being labelled as a bully or harasser in the workplace, and so on.
In such serious matters, it is clear that available evidence must be strong, cogent and objective. Thus while the standard of proof always remains the same, the Briginshaw principle requires serious allegations to be backed by particularly compelling evidence.
SERIOUS ALLEGATIONS – ESTABLISHING THE FACTS
In Natalie Bain v CPB Contractors Pty Ltd  FWC 6273 (9 October 2018) the plaintiff’s colleague Mr Skinner accused Ms Bain of trying to hit him while she was driving a heavy truck at full speed. The Commission expressed concern at the very grave nature of these accusations, and the severe consequences for Ms Bain should such facts be established.
In assessing the evidence both from Mr Skinner and two witnesses, Senior Deputy President Hamberger described Mr Skinner’s evidence as ‘inherently implausible‘, noting that he also had ‘reason to seriously doubt the veracity of the evidence‘ put forward by two alleged witnesses.
SDP Hamberger provides an excellent nutshell summary of Briginshaw: ‘Consistent with the principle in Briginshaw, therefore, one would need very good evidence before accepting that such an allegation is true on the balance of probabilities.’
When we consider the task of a workplace investigator, the principle in Briginshaw – as we have seen played out in the Bain matter – requires investigators to ensure that all evidence is elicited in a manner that is mindful of fairness and veracity. Bain reminds us that poorly presented allegations and unreliable witnesses will hamper any attempt to prove, on the balance of probabilities, that an event actually occurred. Investigators need to bear in mind that the quality of evidence obtained can seriously affect success in later proceedings.
AN UNFORTUNATE REACTION
In Shakespeare v Director General, a NSW teacher alleged as part of her grievance that colleagues had deliberately or recklessly exposed her to items – oranges and mandarins – which caused a severe allergic reaction. The implication was that fellow teachers had deliberately or recklessly placed Ms Shakespeare in medical peril – something that the worker strongly believed to be true.
However, the NSW ADT stated that even though a party might believe passionately that they have been seriously wronged, this is not sufficient in itself to meet the necessary standard: ‘we see no reason to doubt the sincerity or the strength of [the teacher’s] belief that she was the victim of deliberate conduct. But this belief on her part, standing alone, does not constitute probative evidence on the question.’
MAKING DEFENSIBLE FINDINGS
This is a good reminder of the need for workplace investigators to elicit cogent, comprehensive and objective evidence from a number of sources when making findings. In the face of serious allegations, numerous sources of data and testimony should be gathered prior to findings being made.
Distinguishing Briginshaw from the standard of proof might seem like splitting hairs, yet a solid understanding of Briginshaw in action will assist investigators to gather and analyse evidence fairly and correctly.