Australia: ‘He Said, She Said’ in Workplace Investigations

When it comes to workplace investigations in Australia, few things are as difficult to get right as a “he said, she said” scenario. Picture this: two people present completely different stories about an allegation of sexual harassment, with no witnesses to corroborate either account. There’s always more to the story, but uncovering the complete picture requires a nuanced approach.

Can You Make a Finding Without Evidence?

It is a common misconception that in these types of scenarios, findings can never be made due to a lack of evidence as there is nothing to tip the balance in favor of either version of events. However, that is not the case.

While workplace investigators are not required to apply the principle espoused in Briginshaw v. Briginshaw (1938) 60 CLR 336 (Briginshaw principle), it is best practice that they do.

In applying the Briginshaw principle, the seriousness of the alleged misconduct, which is the subject of the workplace investigation, will impact the strength of evidence required to prove such allegation. That is, the more serious the allegation, the more compelling the evidence needs to be to substantiate the allegation.

How Do You Approach a ‘He Said, She Said’ Case?

Rarely is there a scenario with no other evidence to rely on other than “he said, she said.” In these cases, documentary evidence such as rosters or security logs can be crucial—and so can looking beyond the direct evidence to what would be expected if either version was true. For example, the absence of witnesses in a busy thoroughfare might raise a red flag.

When evidence fails to favor one version of events, or when there is little to no direct evidence, credibility becomes crucial. Workplace investigations rely on probabilities—what’s more likely to have happened? Assessing the credibility of parties and their evidence is key to making these factual findings. In some instances, hiring an external investigator may be necessary to ensure impartiality and avoid preconceived notions.

But how do you determine if someone is credible?

It is less about who you believe and more about whose evidence you think is more credible, reliable and/or plausible. However, it is rarely that straightforward. Credibility relates to an individual’s sincerity and truthfulness, while reliability concerns the accuracy of their evidence and their ability to recall events accurately. In other words, someone can be credible but provide unreliable evidence. Conversely, if they lack credibility, their evidence cannot be deemed reliable.

Credibility Considerations

When navigating these situations, it is essential to avoid relying solely on personal factors like body language or demeanor to assess credibility, as these can be tainted by unconscious bias. Consider:

• Consistency: Consistencies and inconsistencies will either bolster or diminish a party’s credibility. Gather comprehensive information and probe for specific details at interviews, as even small nuances may reveal important inconsistencies—factual or in the narrative—later in the investigation process.
• Memory: Ask whether the party has a consistent and accurate recollection of the events. Where relevant, consider factors that could impair their recollection, such as the passage of time.
• Corroboration: Consider whether there is any evidence that supports or refutes their version of events, even if there are no direct witnesses.
• Plausibility: Evaluate whether their story is plausible or believable, considering all available evidence. For instance, consider if a party denies hearing or seeing something they should have, or if they had the chance to act as claimed.
• Demeanor: Assess the party’s openness and honesty. Were they forthcoming with relevant information and answered questions directly and/or acknowledged possible shortcomings in their recollection? Or were they hesitant, evasive or vague?
• Motive: Consider whether either party has a vested interest in the outcome that could potentially compromise their honesty such as financial gain, employment opportunities or intent to harm the other party
• Embellishing: Ask if either party tends to embellish evidence or has a reason to do so.
• Contemporaneity: Ask if there are any contemporaneous records or reports, including any verbal reports to another person.

Can You Rely on Hearsay?

Hearsay evidence, which refers to information gathered from secondhand sources rather than direct observation or experience, is often prevalent in workplace investigations. 

While relying solely on hearsay evidence can compromise the integrity of the investigation and undermine the credibility of the findings, investigators are not prohibited from relying upon it—unlike in a courtroom. However, investigators must carefully consider the circumstances and assign appropriate weight to hearsay evidence as it is considered less reliable due to its potential for inaccuracies and bias.

Hearsay evidence can also provide valuable context and potential avenues for further inquiry in these cases. For instance, if one party confided in or reported the alleged behavior to another individual, their testimony could enhance the credibility of that party.

It is important to recognize that evidence adduced in workplace investigations involving “he said, she said” situations need to be weighed accordingly.   

Jackie Hamilton and Christie Toy are attorneys with Holding Redlich in Brisbane, Australia. © 2024 Holding Redlich. This article was co-authored by Maud Beach, who also is a lawyer with Holding Redlich. All rights reserved. Reposted with permission of Lexology.