How to use the Briginshaw Principle in Workplace Investigations
One of the most frequently misunderstood principles in Australian workplace investigations is the Briginshaw principle.
Investigators often understand that allegations must be established on the balance of probabilities. However, when an allegation involves serious misconduct, such as sexual harassment, assault, fraud or significant professional misconduct, questions arise about whether a higher standard of proof is required.
Does a serious allegation require stronger evidence? Must there be corroboration? Can an investigator substantiate an allegation based on one person's account?
These questions arise regularly when investigators are assessing conflicting evidence and deciding whether allegations should be substantiated.
The starting point is Briginshaw v Briginshaw [1938] HCA 34, a High Court decision that continues to influence how serious allegations are assessed in civil proceedings and workplace investigations.
The central principle is that the standard of proof remains the balance of probabilities, but the nature and seriousness of the allegation must be considered when deciding whether the evidence is sufficiently persuasive.
Understanding how to apply that principle is essential to producing sound and defensible investigation findings.
What is the Briginshaw principle?
The Briginshaw principle comes from a 1938 High Court decision involving allegations of adultery in divorce proceedings.
The Court considered the level of satisfaction required before making a finding involving serious allegations.
Justice Dixon explained that the seriousness of an allegation, the inherent unlikelihood of the alleged occurrence and the gravity of the consequences are matters that may affect whether a decision-maker is reasonably satisfied that the allegation has been proved.
The decision established that serious allegations should not be accepted lightly on the basis of uncertain or insufficiently persuasive evidence.
However, it did not create a new standard of proof.
There remain two principal standards of proof in Australian law:
Beyond reasonable doubt, which applies in criminal proceedings.
Balance of probabilities, which generally applies in civil proceedings and workplace investigations.
The Briginshaw principle operates within the civil standard.
An investigator must be reasonably satisfied, on the evidence, that the alleged conduct occurred.
Does Briginshaw require a higher standard of proof?
No.
This is the most common misunderstanding about the principle.
Investigators sometimes refer to a 'higher Briginshaw standard' or suggest that particularly serious allegations require proof approaching the criminal standard.
That is not an accurate statement of the law.
The balance of probabilities remains the applicable standard.
However, the quality and persuasive force of the evidence required to reach reasonable satisfaction may vary according to the nature and seriousness of what is alleged.
For example, suppose an investigator is considering two allegations:
An employee arrived ten minutes late to a meeting.
An employee deliberately falsified financial records to obtain a personal benefit.
Both allegations are assessed on the balance of probabilities.
However, the second allegation involves deliberate dishonesty and potentially serious professional and employment consequences.
The investigator should therefore exercise particular care in deciding whether the available evidence supports a finding of deliberate falsification.
A finding of fraud should not be based simply on an unexplained discrepancy in financial records if there are reasonable alternative explanations that have not been adequately considered.
This does not mean that fraud requires a different standard of proof.
It means that the investigator must be appropriately satisfied that the alleged conduct occurred.
What does reasonable satisfaction mean?
The phrase 'reasonable satisfaction' is central to understanding Briginshaw.
It requires a decision-maker to reach an actual state of persuasion, based on the evidence, that the relevant facts occurred.
In a workplace investigation, this involves more than simply deciding which version of events seems marginally more plausible.
The investigator must assess the available evidence and determine whether it provides a proper foundation for a finding that the alleged conduct occurred.
This may require considering:
The quality and reliability of witness evidence.
Whether witnesses had a reasonable opportunity to observe the alleged conduct.
Inconsistencies within and between accounts.
The existence of contemporaneous records or communications.
The reliability of inferences drawn from circumstantial evidence.
Reasonable alternative explanations.
Any significant gaps in the available evidence.
The investigator must consider the evidence as a whole.
A serious allegation can be substantiated without direct documentary evidence or multiple witnesses. Equally, several pieces of weak evidence do not necessarily become persuasive simply because there are several of them.
The question is whether the evidence, considered together, provides a sufficiently reliable basis for the finding.
How should investigators apply Briginshaw in practice?
The most effective way to apply the principle is through a structured process of evidence collection and analysis.
1. Identify precisely what must be proved
Before assessing the evidence, clearly identify the conduct alleged.
For example:
'On 12 March, during a meeting with a colleague, the respondent deliberately pushed the colleague against a wall.'
This allegation contains several factual elements.
The investigator needs to consider whether:
The incident occurred at the alleged time and location.
Physical contact occurred.
The respondent caused that contact.
The contact was deliberate.
The conduct occurred in the circumstances alleged.
Different evidence may support different elements.
A witness might reliably establish that physical contact occurred but be unable to say whether it was deliberate.
An investigator should avoid treating evidence establishing one element as automatically establishing all the others.
2. Examine the reliability of each account
Where evidence conflicts, investigators should consider why the accounts differ.
Relevant considerations may include the witnesses' opportunity to observe events, the time that has passed, the circumstances in which the accounts were given and any supporting evidence.
A witness's confidence is not necessarily an indicator of accuracy.
Similarly, inconsistencies do not automatically establish dishonesty.
An investigator should examine whether inconsistencies concern central facts or peripheral details and whether there are reasonable explanations for them.
The analysis should identify why particular evidence is accepted or rejected.
3. Consider reasonable alternative explanations
An investigator should actively consider explanations that are reasonably available on the evidence.
Suppose an employee is accused of deliberately deleting important organisational records.
A system audit confirms that records were deleted using the employee's account.
That evidence may establish that the account was involved in the deletion.
However, before finding deliberate misconduct, the investigator should consider whether the deletion was intentional, accidental, automated or performed by another person with access to the account.
The investigator should pursue relevant enquiries where reasonably practicable.
The respondent does not bear the burden of proving their innocence.
Equally, investigators are not required to eliminate every theoretical possibility. Their task is to assess reasonable alternatives supported by the evidence.
4. Assess the evidence as a whole
Evidence should not be assessed solely by counting witnesses or identifying which party has produced the most documents.
An investigator should consider how the evidence fits together.
For example, a witness account may be supported by a contemporaneous text message, a relevant electronic record or evidence of the immediate aftermath of an incident.
That supporting evidence may increase confidence in the account.
Alternatively, significant contradictions or unexplained gaps may reduce its reliability.
The investigator must determine whether the evidence as a whole establishes the allegation on the balance of probabilities.
5. Explain the reasoning behind the finding
The investigation report should explain how the evidence supports the conclusion.
Simply writing 'I am satisfied on the balance of probabilities, having applied Briginshaw' is insufficient as an explanation of the evidence.
The analysis should identify the significant evidence, address material inconsistencies and explain why the investigator accepts one account over another.
For serious allegations, it may be appropriate to expressly acknowledge that the seriousness of the allegation has been taken into account when assessing whether the available evidence supports the necessary reasonable satisfaction.
The emphasis should remain on the actual evidentiary reasoning.
Does Briginshaw require corroborating evidence?
No. The principle does not impose a universal requirement for corroboration.
This is particularly important in allegations of sexual harassment, bullying and other conduct that may occur without independent witnesses.
An investigator may be required to assess the evidence of two people who provide directly conflicting accounts.
The absence of CCTV, independent witnesses or contemporaneous documents does not automatically prevent a finding.
The investigator must assess the reliability and persuasive force of the available evidence.
A single witness's account may be sufficiently reliable to substantiate an allegation, depending on the circumstances.
However, investigators should still consider whether other relevant evidence is reasonably available.
Contemporaneous messages, disclosure to another person, relevant records or evidence concerning surrounding circumstances may assist in evaluating an account.
Such evidence should be assessed for what it actually establishes.
For example, a message showing that a complainant reported an incident immediately afterwards may support the timing and consistency of the complaint. It does not necessarily independently prove every detail of the alleged incident.
The absence of corroboration is one consideration in the overall assessment, rather than an automatic reason to find an allegation unsubstantiated.
What if the allegation involves sexual harassment or assault?
Allegations involving sexual harassment, assault or other serious conduct can create particular difficulties for investigators.
The alleged conduct may have occurred in private. There may be no independent witnesses, and accounts may differ substantially.
In those circumstances, the investigator should carefully assess the evidence that is available.
This may include the complainant's account, the respondent's explanation, relevant communications, contemporaneous disclosures and any other evidence bearing on the allegation.
The seriousness of the allegation does not justify automatically rejecting an otherwise reliable account because independent corroboration is unavailable.
Nor does it justify accepting an allegation without adequately testing the available evidence.
The investigator must reach a reasoned conclusion based on the evidence and the applicable civil standard of proof.
What guidance has the Fair Work Commission provided?
The Briginshaw principle has been considered in numerous workplace misconduct and unfair dismissal decisions.
One useful example is [2007] AIRCFB 797, a Full Bench decision of the Australian Industrial Relations Commission.
The case involved a workplace confrontation in which an employee admitted physical contact with a colleague but disputed the nature and seriousness of that contact.
The original Commissioner had to assess conflicting witness accounts and determine whether the employee had grabbed his colleague by the throat.
On appeal, the employee argued that the Commissioner had incorrectly applied Briginshaw.
The Full Bench rejected that argument.
It confirmed that the standard of proof remained the balance of probabilities and that the seriousness of the allegation was relevant to the degree of satisfaction required.
Importantly, the Full Bench observed that the Commissioner had carefully analysed the evidence and explained why certain accounts were accepted and others rejected.
The Full Bench also made a useful distinction between determining whether alleged conduct occurred and subsequently deciding whether dismissal was justified.
These are separate exercises.
Briginshaw concerns the factual findings. The appropriate disciplinary response involves additional considerations.
The decision illustrates why investigators should clearly distinguish their evidentiary findings from any subsequent disciplinary assessment.
Common mistakes when applying Briginshaw
Several errors regularly arise when investigators attempt to apply the principle.
Treating Briginshaw as a higher standard of proof. The standard remains the balance of probabilities.
Assuming corroboration is mandatory. There is no general requirement for independent corroboration simply because the allegation is serious.
Using the seriousness of an allegation as evidence that it occurred. The gravity of an allegation informs the assessment of evidence; it does not itself establish the alleged conduct.
Failing to address reasonable alternative explanations. Investigators should consider explanations reasonably available on the evidence before reaching findings.
Applying Briginshaw only as a formula in the report. Referring to the principle is not a substitute for careful evidentiary analysis.
Confusing substantiation with disciplinary outcome. Establishing that conduct occurred is different from deciding whether that conduct warrants dismissal or another sanction.
How should Briginshaw be addressed in an investigation report?
An investigation report should identify the applicable standard of proof and explain the findings through the analysis of evidence.
Where allegations are serious, the report may include wording such as:
'The allegations have been assessed on the balance of probabilities. In reaching the findings, regard has been given to the nature and seriousness of the allegations and the need for reasonable satisfaction based on the available evidence, consistent with the principles discussed in Briginshaw v Briginshaw [1938] HCA 34.'
However, that statement should be supported by the detailed analysis that follows.
The investigator should explain the evidence accepted, any significant evidence rejected, the treatment of competing accounts and the reasons supporting each finding.
This is far more useful than simply stating that the Briginshaw principle has been applied.
Frequently asked questions
Is Briginshaw a higher standard than the balance of probabilities?
No. Briginshaw does not establish a separate or higher standard of proof. It requires proper consideration of the seriousness and circumstances of an allegation when determining whether the evidence supports reasonable satisfaction on the balance of probabilities.
Does serious misconduct require more evidence?
There is no fixed requirement for a particular quantity of evidence. The seriousness of the allegation may affect the strength and persuasive quality of evidence required to reach reasonable satisfaction.
Can an allegation be substantiated without witnesses?
Yes, depending on the evidence. The absence of independent witnesses does not automatically prevent a substantiated finding.
Does Briginshaw apply to all workplace investigations?
The underlying principles concerning civil proof and reasonable satisfaction are relevant to many workplace investigations. However, the applicable legal framework, including legislation, industrial instruments and organisational policies, should be identified for each investigation.
Does Briginshaw apply when deciding disciplinary action?
Briginshaw concerns factual findings about whether conduct occurred. Deciding what disciplinary action is appropriate involves a separate assessment of the established facts and relevant legal and employment considerations.
Final thoughts
The practical application of Briginshaw is straightforward in principle but requires care in practice.
Investigators must apply the balance of probabilities while ensuring that their findings are supported by sufficiently reliable and persuasive evidence.
The seriousness of an allegation must be taken into account, but it does not introduce a higher standard of proof or an automatic requirement for corroboration.
For investigators, the most important task is to demonstrate how the evidence supports the conclusion.
A defensible finding depends on a careful assessment of the evidence and a clear explanation of why that evidence establishes the allegation.
Insight Investigations provides independent workplace investigations, reportable conduct investigations and professional investigation training.
For further information about our services and training, visit www.insightinvestigations.com.au.
Authorities: Briginshaw v Briginshaw [1938] HCA 34; [2007] AIRCFB 797.