Inference or Evidence? Professionals Know the Difference

- Thursday, February 02, 2017


In the conduct of any workplace investigation, it can sometimes be tempting to hurry past those alleged facts that appear “perfectly clear”. Such perceptions arise when we draw together two or more related elements from an investigation, add our own assumptions on the matter, and infer from this a particular conclusion.

Unfortunately, such inferences almost certainly arise off the back of faulty logic. A high-quality workplace investigation requires that we objectively seek and present only irrefutable and fully corroborated evidence.

In the recent case of Walker v Salvation Army, the Fair Work Commission (FWC) pointed to the problem of drawing inferences within an investigation, particularly when these are presented as “evidence” to prove an employee’s misconduct. 

The determination of Senior Deputy President Hamberger in the 2017 matter of Walker also highlights the important role a professional investigator can play in ensuring a highly objective workplace investigation.

Clear evidence vs clouded perception

In Walker, a long term employee of the Salvation Army in NSW was dismissed for her alleged theft of money from a Salvos Store. Central to the employer’s case was the existence of CCTV security camera footage that the employer described as being clear proof of the misconduct. 

Certain images on film included Walker having interactions with a customer, and then later putting into her apron pocket what appeared to be cash. The employer argued that this clearly constituted evidence that theft had occurred, yet did not allow the worker to view the footage and respond. Instant termination was then instigated.

The employee argued at the FWC that the dismissal was unfair, due to false inferences that had been drawn by the employer from the CCTV footage. Walker stated that at the relevant time she had in fact been putting in place a hold for a customer. 

She made a note of items and gave this to the customer. Portions of her time were off-camera. Later she appeared to put a $50 note in her apron pocket, an amount actually representing the delivery fee for another customer, but which the employer held to be several notes of misappropriated money. 

Walker was initially unsure due to her eyesight whether it was an Australian banknote pad she had used on the shop floor, which had the appearance of a $50 note. It was finally established that it was a single $50 note relevant to the second customer’s delivery, which was due to be given to the delivery driver.

FWC – Investigations must be fair

SDP Hamberger expressed surprise at the fact that the employer appeared to rely so significantly on arguable CCTV footage, without objectively and thoroughly questioning Walker herself about the allegations. 

The worker was a long-term member of the Salvos team and the inference drawn by the employer was not reasonable, as other available explanations were available for consideration and were ignored. 

Indeed, it was noted that: “[t]he alacrity with which the respondent accepted Mr Shiraz’s version of events over that of a long standing employee is certainly surprising”.

The worker was awarded payment by the FWC in excess of $20,000 – part of which included recognition of her lengthy service with the charity.

Traps for non-professional investigators

It might seem obvious, but the best way to escape the error of drawing false inferences is to source a professional workplace investigator. There are myriad subtleties and traps embedded within investigative work, particularly when a water-tight report is required for later action. 

A key mistake made by untrained workplace investigators is the drawing of premature inferences, without seeking explanations from all available sources of data. Natural justice requires an even-handed approach to be used in relation to all persons involved.

The professional investigative edge

When a job is on the line or serious allegations are made, every workplace investigation requires utmost skill and objectivity. 

At Wise Workplace, we offer exemplary, nationally-recognised investigator training courses. We can also provide your workplace with professional workplace investigators should you choose to utilise an objective external professional. 

Differentiating a dubious inference from actual evidence is just one of many crucial skills in the tool kit of a professional investigator. We look forward to assisting you with the workplace investigation and training services that best suit your business needs.

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