The role of the Briginshaw Principle in Workplace Investigations involving Serious Misconduct
What is the Briginshaw principle?
The Briginshaw principle derives from Briginshaw v Briginshaw (1938) 60 CLR 336, which is an important case in the development of the common law, and it established several key principles that continue to be applied in many legal contexts, including workplace investigations.
The Briginshaw principle does not change the standard of proof in workplace investigations but rather guides the decision-making process in assessing the evidence.
Generally, the Briginshaw principle holds that when determining whether an allegation of misconduct is proved, the decision-maker must take into account the seriousness of the consequences of the finding, the seriousness of the allegation, the quality of the evidence, and any other relevant circumstances.
Key Principles from Briginshaw v Briginshaw
Some of the key principles derived from the Briginshaw case include as follows:
- Standard of proof: In general, the standard of proof in civil proceedings is on the balance of probabilities.The Briginshaw principle does not set a new standard of proof but rather guides how that standard ought to be reached when assessing the evidence, depending on the nature of the allegations and the consequences of an adverse finding.
- Evidence: The Briginshaw case also established that the quality of the evidence is a key factor in determining whether an allegation has been proven.In particular, the case held that if the evidence is circumstantial or if the credibility of witnesses is in question, the decision-maker must take a cautious approach in making a finding.
- Relevance of consequences: The Briginshaw case emphasised the importance of considering the consequences of a finding when determining whether an allegation has been proven.In particular, the case held that if the consequences of a finding are serious, such as the termination of employment, the standard of proof may be higher.
- The role of the decision-maker: The Briginshaw case clarified the role of the decision-maker in civil proceedings, emphasising that the decision-maker must consider all relevant evidence and apply a logical and objective analysis to reach a finding.
Subsequent court decisions in Australia have expanded on these principles and have further supported the view that:
- Concerning the quality of evidence, circumstantial evidence can still be used, provided that it is reliable and compelling.
- In assessing the relevant consequences, the decision maker must not only take into account the consequences for the individual being investigated but also the impact of the finding on the wider community.
- The role of the decision-maker includes an obligation to act impartially and without bias, and to conduct the decision-making process in a way that is transparent and accountable.
What does this mean in practical terms for Workplace Investigations?
The Briginshaw principle guides decision-makers in workplace investigations, helping to ensure that the process is fair, transparent, and based on a thorough consideration of the evidence and relevant circumstances.
In practical terms, this means that the decision-maker must consider the severity of the potential consequences for the individual being investigated, the seriousness of the misconduct being alleged, the strength and reliability of the evidence, and any other relevant factors when deciding.
For example, if the alleged misconduct is particularly serious, such as theft or fraud, and there is clear and convincing evidence to support the allegations, the decision-maker may be more likely to find that the misconduct has been proven.
Why Potts Lawyers?
In a legal submission, the Briginshaw principle can be used to your advantage by highlighting the relevant considerations that the decision-maker must take into account when assessing the evidence in your case.
Similarly, if the decision-maker has failed to take the Briginshaw principle into account when deciding on the matter, the adverse action taken by the employer can be challenged.
Potts Litigation Lawyers are experienced in assisting employees who face serious allegations of misconduct by preparing detailed submissions that highlight these key considerations, to maximise your prospects of successfully defending the allegations. Whilst not all allegations can be successfully defended, even where misconduct is substantiated, these strategies can minimise the risk of serious disciplinary action being taken, including termination of employment.
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