Workplace Investigations and Best Practice in Terms of the Standards of Proof.
The Briginshaw standard of proof is an important legal principle used to assess evidence in civil cases, including workplace investigations. It originated from an Australian court case (Briginshaw v Briginshaw) and has since been widely adopted in various jurisdictions.
The Briginshaw standard recognises that in certain cases, such as workplace investigations involving allegations of misconduct or wrongdoing, the usual standard of proof (beyond a reasonable doubt) used in criminal cases may not be applicable.
Instead, the Briginshaw standard emphasises the balance of probabilities, requiring that the evidence presented must be sufficiently cogent, clear, and compelling to establish a finding on the balance of probabilities. In the context of workplace investigations, the Briginshaw standard is crucial because it sets a threshold for determining whether allegations of misconduct or wrongdoing are substantiated.
It acknowledges that workplace investigations often rely on testimonial evidence, witness statements, and documentary evidence, which may not always be definitive or conclusive.
Why Workplace Investigations Rely on the Civil Standard of Proof?
By using the Briginshaw standard, investigators and decision-makers are guided to assess the evidence in a careful and nuanced manner, considering the reliability, credibility, and consistency of the evidence presented.
This standard is important in workplace investigations as it ensures that allegations are not arbitrarily dismissed or unfairly substantiated. It strikes a balance by requiring a degree of persuasion based on the evidence presented, ensuring fairness to both the accuser and the accused. It also helps prevent any potential injustice or harm caused by unreliable or insufficient evidence.
Adhering to the Briginshaw standard of proof demonstrates a commitment to conducting thorough and fair investigations in the workplace. It helps maintain integrity, transparency, and trust in the investigation process, and ultimately supports the establishment of a safe and respectful work environment for all employees. Fair Work Commission (FWC) hearings also rely on this this standard of proof.
Why Streamlining Workplace Investigations through Clear Policies and Procedures is Necessary.
In the realm of workplace investigations, the path to resolution is often labyrinthine, fraught with obstacles that can obscure the truth and prolong the process. However, some organisations have managed to simplify this intricate journey by establishing clear policies and procedures for addressing formal complaints. This case study examines the advantages of having a well-defined framework in place, drawing insights from a seasoned investigator’s experiences. We will explore how these meticulously crafted procedures facilitate the investigative process, enabling quicker, fairer, and more conclusive outcomes.
In the world of workplace investigations, one investigator stands out for their extensive experience in navigating the turbulent waters of employee grievances. With a track record of successfully resolving countless cases, this investigator emphasises the importance of clear and comprehensive policies and procedures in facilitating investigations.
The Power of Clear Policies and Procedures.
Having conducted numerous workplace investigations, our seasoned investigator attests that the easiest cases to handle procedurally are those that originate from organisations with well-defined complaint-handling protocols. These procedures offer several key advantages:
Clarity in Handling Complaints
Effective procedures outline the exact steps to be taken when a complaint is lodged. This includes the process for reporting, documentation requirements, and the designated personnel responsible for managing complaints.
Assigned Roles and Responsibilities
Clear procedures specify who will handle complaints, whether it’s an internal HR team, an external investigator, or a specialised committee. This ensures that the right individuals are entrusted with resolving the issue.
Support for Complainants and Respondents
The best procedures provide guidance on how to support both complainants and respondents throughout the investigation. This includes ensuring a fair and respectful process for all parties involved.
Structured Assessment of Allegations
Effective procedures outline how to assess and determine the validity of allegations, categorising them as substantiated, unsubstantiated, or unable to be determined. This clarity helps in making informed recommendations.
Established Timeframes
Procedures should include recommended timeframes for each stage of the investigation, ensuring that the process is completed efficiently. This not only benefits the involved parties but also contributes to a timely resolution.
Workplace Investigation Case Study Example
In one memorable case, our investigator encountered an organisation with a meticulously crafted policy for handling complaints. A complainant had alleged workplace harassment, and the company’s procedure swiftly set the investigation into motion. The complaint was assigned to a qualified investigator, roles and responsibilities were clearly defined, and support mechanisms were in place for both the complainant and the respondent. The investigation proceeded efficiently, adhering to predetermined timeframes, which ensured that the matter was addressed promptly. After a thorough examination of evidence and interviews with relevant parties, the investigator was able to determine that the complaint was substantiated.
Further reading
- The Workplace Investigations Process
- Workplace Investigations Procedural Fairness
- Case Studies | Workplace investigations and culture reviews
- Workplace Investigations and Best Practice
- Procedures for Fair Workplace Investigations
- Protected Disclosures and Independent Workplace Investigations
Workplace investigations support
Independent workplace consultancy and advisory service.
We will look at the situation from all angles and considerations before advising clients. Depending on the context of the situation and what client instructions are, we generally conduct an investigation and derive any allegations based on the appropriate standard of proof.
In most cases this is as per the civil standard, as explained by the High Court in Briginshaw, of each of the allegations. We also advise many clients to conduct sensitive investigations under the instruction of our legal partner so as it is protected by legal professional privilege.
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David Haydon
Employment Relations Specialist and HR Consultant
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