Bullying

What's the difference between evidence and information? | WISE Workplace

Workplace investigation reports often refer to the information on which the report findings are based. Sometimes the report will also refer to the evidence arising out of the investigation. Both these terms apply to the facts of the matter. At first glance these two terms often appear to be interchangeable. However, in the context of investigation reports, they have different meanings. Whilst all evidence is also information, not all information is evidence. Sounds confusing? The purpose of this article is to briefly explain the difference and outline some of the key rules of evidence applicable to investigations.

Both evidence and information:
  • inform the investigator what happened, when and who was responsible for the matter under investigation;
  • can take various forms including witness accounts, hard copy documents and electronic records.
The difference between information and evidence is their inherent quality. Evidence is the term used to describe information which is relevant to proving a disputed fact in issue in legal proceedings. Accordingly, evidence complies with the legal rules of evidence. However, information may or may not comply with these rules.

Investigators will consider all available information in determining an investigation and are not bound by the legal rules of evidence. Investigators will give greater weight to higher quality information and use the legal rules of evidence as a guide. Information which does not comply with these rules is generally regarded by investigators as having a lesser quality and is therefore given lesser weight.

This practice gives you (the client) a sound basis to rely on the investigation findings in making any subsequent managerial decisions. If investigators use the same rules as would be applied by a court or tribunal in a subsequent legal challenge, it is likely that the factual findings will be similar and will withstand scrutiny by the court or tribunal.

An outline of some key rules of evidence

The rules of evidence are a complicated body of law contained in a myriad of cases and State and Federal legislation. Obviously, it is not the purpose of this article to provide you with an exhaustive explanation of these rules. Rather, set out below is a brief outline of some of the key rules that guide investigators in determining the strength and quality of the information gathered during an investigation. The purpose of this outline is to help demystify these rules. If you are having trouble understanding and applying any of these terms in your workplace, we strongly recommend that you seek further advice.

The key rules include:
  • Relevance
The information relied upon must be relevant to a point in issue. For example, if the question is "Did Pi Chan access pornographic web sites from the work computer during work hours?", it is not relevant to consider information relating to Pi Chan's sexual preferences or marital status.
  • Hearsay
The hearsay rule is complicated even for the best of lawyers. Subject to certain exceptions the hearsay rule provides that evidence from a witness who did not directly experience an event, condition or thing, is inadmissible. It can be easier to work out what is not hearsay first. Something that was said, heard, seen, smelt or felt first hand by a witness is not considered hearsay – However, if this witness reports to a second party that she or he said, heard, saw smelt or felt anything, the second party's account of what was said, heard, seen, felt or smelt is considered hearsay. The second person's account cannot provide direct evidence of the event only that it was reported to have occurred. In other words heasay is the "he said, she said rule". When he says "she said…." what she said is hearsay and is not admissible.
To illustrate this rule, if Sharon complains that her manager, Katrina, used stand over tactics and insisted that she not have a lunch break for three consecutive days, Sharon's direct account of what occurred is not hearsay. However if the only information available is from Brian, who normally has lunch with Sharon, and who reports that Sharon told him that Katrina used standover tactics and made Sharon go without lunch on three consecutive days, Brian's evidence is hearsay and should be treated accordingly. Given that it would normally be inadmissible in court proceedings, it shouldn't be given weight in determining the investigation findings.
  • Best evidence
The best evidence rule requires the use of the most original source of any evidence wherever possible – a first hand witness, an original document, a dated photograph, hand written diary entries are all example of best evidence.
The digital revolution has made us much less reliant on original documents in our workplaces and at home. Digital and electronic records are usually admissible in legal proceedings, subject to their authenticity and reliability. Hence, it is always good practice in an investigation to check on the authenticity and reliability of such records in terms of their origin and authorship.
  • Corroboration
In proving facts, corroborated evidence has greater weight (persuasiveness) than uncorroborated evidence. Generally speaking, an investigator will seek multiple sources to corroborate the information arising during an investigation in order to verify it. Where key information can be corroborated by another good reliable source, greater weight can be placed on it in making investigation findings.
For example if an complainant alleges that an incident involved conduct by a particular person, on a particular day, yet that accused person denies being at work that day, the official roster records can be used to corroborate the accused person's absence from the workplace. If the shift and time sheets show that the accused person was not at work on the day in question, his or her version of events is corroborated.
The tip here is if you can verify a piece of information from an additional source – then you should.
  • Similar Fact Evidence
In certain circumstances evidence about an accused person's past misconduct can be admitted in a criminal trial for purposes of inferring that the person committed the misconduct at issue. Generally speaking, it is difficult to have similar fact evidence admitted into evidence. The prosecution has to satisfy the trial judge on the balance of probabilities, that in the context of the case at hand, the probative value of the evidence outweighs any potential prejudice to the accused. Otherwise, similar fact evidence is usually inadmissible.
In the investigation of workplace misconduct cases, investigators generally avoid similar fact evidence. That is, investigators try to avoid making any assumptions or prejudgement of the matter under investigation based on information about similar previous cases of misconduct. Furthermore, depending on the reliability of the decision in the first case, relying on similar fact evidence can be fraught for investigators and produce false positive findings.
However, although information about similar previous incidents is usually avoided by investigators in determining current allegations, if adverse findings are made against the accused, this information can still be taken into account by management in determining any applicable penalty.

Briginshaw v Briginshaw

Practically speaking, the Briginshaw case requires judges in civil cases examining conduct which could amount to crime or other moral wrong doing, with potentially serious consequences for the alleged perpetrator, to closely scrutinize the evidence in order to be satisfied that it is strong enough to substantiate the allegations of fact on the balance of probabilities. In some civil cases, depending on the nature of the allegation, the strength of the evidence required to meet the standard of proof in civil cases may change. (However the civil standard of proof does not change – it is always the balance of probabilities).

In a workplace investigation context, where the conduct in question could amount to crime or other moral wrong doing, with potentially serious consequences for the alleged perpetrator (such as dismissal, demotion or loss of public reputation), the investigator will usually apply the case of Briginshaw v Briginshaw. In these matters, the investigator has to be satisfied that the standard of the evidence is strong enough, on the balance of probabilities, to substantiate the allegations.

More information about Briginshaw
 
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