09/02/2020 Tips Demystifying the balance of probabilities and the rule in Briginshaw | WISE Workplace

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Investigation Practice

Tips Demystifying the balance of probabilities and the rule in

Briginshaw | WISE Workplace
This article seeks to demystify the following commonly occurring concepts in workplace investigation reports:

1. the 'balance of probabilities' – this relates to the standard of proof required to determine whether there is sufficient evidence to substantiate
allegations; and
2. the rule in Briginshaw – this relates to the standard of the evidence required if allegations involve a crime, fraud or other type of moral wrong
doing, which if proven,would have serious consequences for thealleged wrong doer.

Why are these concepts used in workplace investigation reports?

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Whilst the strict rules of evidence do not normally apply to workplace investigations, investigators have adopted the standard practice of applying
civil rules including these concepts.

Civil rules of evidence have been adopted because workplace investigation findings usually form the basis of subsequent employer decisions
concerning the employee(s) under investigation such as terminating his or her employment contract. If the employee disputes this decision, he or
she may seek to legally challenge it. This type of challenge is a civil action (as opposed to a criminal one) and will ultimately be determined
according to the rules of evidence that apply to civil matters.

If investigators use the same rules as would be applied by a court or tribunal on any subsequent challenge, it is likely that the factual findings will be
similar and will withstand scrutiny by the court or tribunal. This practice gives employer a sound basis to rely on the investigation findings in
making any subsequent decisions.

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 in relation to criminal matters. (Criminal allegations must be proven 'beyond
reasonable doubt').

The balance of probabilities as has been enacted in federal and state legislation as the civil standard of proof to be adopted in civil cases before the
federal and state courts respectively (see section 140(1) of the Evidence Act 1995 (Cth) and section 140(1) of the Evidence Act 1995 (NSW)).

One of the leading Australian evidence textbooks, Cross on Evidence (online at www.lexisnexis.com.au) provides a detailed explanation of the
'balance of probabilities' standard of proof. Generally, proof of a fact on the balance of probabilities requires the investigator to determine whether,
in the longstanding words of English judge Denning J, it is 'more probable than not' that the facts occurred (see Miller v Minister of Pensions [1947]
2 All ER 372 at 374). This may require the investigator to compare competing versions of events from various witnesses to determine which version
is more probable. Yet it is not enough that a particular version of events has a mathematically higher probability of occurring. According to the
English judge, Lord Simon of Glaisdale in Davies v Taylor [1974] AC 207 at 219; [1972] 3 All ER 836 at 844, the standard requires satisfaction of
odds at least a 51 % to 49% that the events occurred.

However, in the Australian case of 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 required the tribunal in this case 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"

Briginshaw v Briginshaw (1938) 60 CLR 336

Where workplace investigations concern matters which could amount to crime or other moral wrong doing, with potentially serious consequences
for the alleged perpetrator, the investigation report will often refer to the case of Briginshaw v Briginshaw. This case is usually mentioned in the
context of whether the standard of the evidence is sufficient, on the balance of probabilities, to substantiate the allegations.

The facts of Briginshaw

Briginshaw was a divorce case in the days before no-fault divorce. The applicant husband sought a divorce and was required to prove that there
were 'grounds'– in this case, the husband claimed that his wife had committed adultery. De Plevitz (2003) conveniently summarises the key facts of
this case. The only evidence the husband could produce was Mrs Briginshaw's admission that she had kissed the co-respondent and hearsay
evidence that a friend of Mr Briginshaw's sister had been told in confidence by the co-respondent that he and Mrs Briginshaw had engaged in sexual
intercourse. The judge refused to grant a divorce he was not satisfied beyond a reasonable doubt that the wife had committed adultery. The husband
appealed on the basis, amongst other things, that the judge was wrong in holding that the husband had to prove his wife's adultery beyond
reasonable doubt. On appeal the High Court of Australia had to determine the issue of the required standard of proof in civil cases of this nature.

The High Court decision

The High Court held that although the criminal standard of proof did not apply, a finding of adultery would have grave consequences for the wife.
According to McTiernan J these consequences included the wife being subject to 'a loss of status' (remembering of course that this case was heard in
1938!). Hence the evidence against her had to be closely scrutinized to ensure if was clear and compelling. On that test, the High Court held that the
evidence lacked cogency and the husband's application was rejected.

On the issue of the civil standard of proof, Dixon Jheld(in a frequently cited statement) at 361-362:

'Fortunately ... at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by
the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But
reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or
facts to be proved.

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the
consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has
been proved to the reasonable satisfaction of the tribunal. '

In cases such as this, Dixon J held that that the standard of proof should not be satisfied by 'inexact proofs, indefinite testimony, or indirect
references.'

Whilst the facts of Briginshaw are somewhat outdated given the introduction of no-fault divorce in 1975, its principles have withstood the test of
time and are now enacted in state and federal legislation (see for example section 140(2) of the Evidence Act 1995(Cth)).

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09/02/2020 Tips Demystifying the balance of probabilities and the rule in Briginshaw | WISE Workplace
Applying Briginshaw in practice

Subsequent cases have applied the Briginshaw principle as meaning that 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 does not change: it 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).

Practically speaking, this means that in civil cases examining conduct which is potentially criminal or fraudulent, the judge will need to closely
scrutinize the evidence to be satisfied that it is strong enough to substantiate the allegations of fact on the balance of probabilities.

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 Pleviitz (2003) notes that the Briginshaw 'standard of proof' has been adopted by all Australian anti-discrimination jurisdictions as a rule based
on the general belief that any allegation of discrimination or harassment is a 'serious matter. 'However she contends that this approach is not
warranted in all discrimination cases. She argues that deciding whether to apply Briginshaw should be based on 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 allehged 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.

A recent case considering Briginshaw - Qantas Airways v Gama [2008] FCAFC 69:

In this case, the Full Court of the Federal Court of Australia heard an appeal by Qantas from a decision from a lower court which decided in favour
of Mr Gama's allegations against Qantas of discrimination in the course of his employment , contrary to several Commonwealth Acts including the
Racial Discrimination Act 1975 ('RDA').

Mr Gamma claimed that Qantas was vicariously liable for the breaches of the RDA pursuant to section 18A of the Act because the managers of his
section were aware of the racial comments and actions of the other supervisors and employees. Mr Gamma claimed that he suffered a severe
depressive illness as a result of a series of discriminatory verbal remarks and graffiti.

The trial judge found in favour of Mr Gama and awarded him damages in excess of $71000. Qantas appealed this decision. Mr Gama cross
appealed on some points including that the trial judge erred by using the 'Briginshaw test” when applying the balance of probabilities standard with
respect to some of Mr Gama's allegations under the RDA and the Disability Discrimination Act.

On the basis of earlier cases on this issue the Full Court held that the Briginshaw test does not create a third standard of proof between the civil and
criminal standard. The standard of proof remains on the balance of probabilities. It is the degree of satisfaction that is required in determining that
that standard has been discharged that may vary according to the seriousness of the allegations of misconduct.

In her judgment Branson J considered Briginshaw in some detail. However Her Honour but did not directly address the debate as to whether
Briginshaw has been incorrectly applied in earlier racial discrimination cases. Whilst not directly relevant to workplace investigations, Her Honour
held that giving that the action arose under federal legislation in a federal court, the Court had to apply section 140 of the Evidence Act 1975 (Cth),

'which recognises, adopting the language of the High Court in Neat Holdings, that the strength of the evidence necessary to establish a
fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved – and, I would add, the
circumstances in which it is sought to be proved.'

Branson J cautioned against use of terms such as the Briginshaw test or the Briginshaw Standard due to their tendency to lead decision makers into
error. So, perhaps over time, there will be a shift away from the use of these expressions in investigation reports with greater focus on two-step
approach in Dutt discussed above.

References

Cross on Evidence

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

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