And why as a workplace/HR or regulatory investigator you need to know (something) about it.


As a HR, workplace or regulatory investigator you need to know your way around the law as it relates to your investigations. One of the important things you need to know (because it impacts significantly on your findings) is the concept of the “standard of proof.” What that essentially means is; to what level/standard do you have to prove something? In other words, what amount or quality of evidence do you need to be able to substantiate that something happened?


HR/Workplace and regulatory investigators are often challenged by issues related to whether or not they have enough “evidence” to substantiate (or sustain, prove or other terminology used) something. The first thing one needs to establish is the appropriate “standard” of proof. The standard of proof refers to the level of evidence required to establish a fact or determine the outcome of a legal dispute. In criminal cases, a higher standard known as “beyond reasonable doubt” applies. However, in civil cases, including workplace investigations and regulatory matters, the standard of proof is based on the balance of probabilities.


But what exactly is the “balance” of probabilities?


Simply put (and frankly, that’s the best way) the balance of probabilities requires that the facts alleged, or the claims made, be proven to be more likely than not. In other words, if you’re able to prove that it’s “more likely than not” that something occurred (based on the evidence of course) then on the balance of probabilities, you can prove that. Some law commentators say associated things like “more than fifty percent” or “51 to 49 is enough.” These descriptions are difficult because it assumes that evidence can be quantified in a percentage. But you get the idea.


The best way, in my view, to explain the balance of probabilities is to think of a set of scales. Evenly weighted, a set of scales sits perfectly level, or balanced. As an investigator, when you are gathering evidence that assists or negates your case, it will go on either side of the scale. If the evidence presented tips the scale slightly in favor of one side, that side will be successful. It doesn’t matter how far the scales are tipped, although there is relevant case law about how much the scales need to be tipped (Briginshaw v Briginshaw, 1938). It’s an essential piece of case law that you also need to know about and will be covered in a subsequent article.


As an example, many of us may have followed the case of Bruce Lehrmann and Brittany Higgins. If you haven’t, a quick google search will tell you everything you need to know. Basically, both parties worked for the Australian federal government and it was alleged that Mr Lehrmann sexually assaulted Ms Higgins in Parliament House in 2019.


Luhrmann was charged with sexual assault and later the trail later aborted. In any criminal case like this one, it’s the prosecution’s burden to prove that something happened “beyond a reasonable doubt.” But of course, in civil or administrative matters (as outlined above) the plaintiff (person bringing the claim) needs to prove something happened on the balance of probabilities.


Last week saw Mr Luhrmann (as the plaintiff) fail in a defamation action against television Channel Ten, after alleging that the television station wrongly accused him of raping Ms Higgins during the night in question. The trial judge found, on the balance of probabilities, that Luhrmann “raped” Ms Higgins, and therefore his defamation action failed.


This case highlights the differences in proving something according to the different standards. There are many more examples.


With all investigations however, there are important things to note and it’s worth emphasizing that any judgements made in workplace or regulatory investigation findings must still be based on relevant and admissible evidence, and in accordance with important concepts like procedural fairness, natural justice and relevant case law. Proving or substantiating something based on the balance of probabilities may sound like an easier option – and often it is – but there are still complexities and it’s not always clear cut. But the “standard” is lower, thus giving investigators more scope in making appropriate, sound and robust findings. Fraud is a good example; while many fraud offences are criminal, proving them on the criminal standard can be difficult. Tipping the scales on the balance of probability can be less problematic.


The nature and quality of evidence gathered in both standards of proof does not change. Some investigators associate the civil standard as being “easier,” but that’s not a good way to think about it. It’s the way the evidence allows an investigator to make a judgement that is the important thing.


*I am not a lawyer and nothing in this article is intended to constitute legal advice. As an investigator, it’s always recommended to seek proper legal advice in matters that warrant.


It is important to understand the concepts (legal and procedural) because, in the end, this will add to your credibility and reputation as being a professional investigator and one who makes sound decisions on the evidence.