No Proof: The Key Role of Circumstantial Evidence

What to do when a case is lacking direct evidence

Posted by Harriet Stacey in on December 17th, 2015

The issue of circumstantial evidence can often arise in workplace investigations, and there can sometimes be confusion about how to handle it.  

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DIRECT VERSUS CIRCUMSTANTIAL EVIDENCE

In some workplace investigations, there is no direct evidence. That is, there are no witnesses or other evidence directly linking the employee to the alleged misconduct. Yet there can often be indirect or circumstantial evidence, for example:

  • Witness accounts that show a pattern of behaviour, for example an employee regularly being seen at the site of an alleged incident.
  • Swipe card records that reveal an employee’s regular use of a particular exit at a particular time.

This kind of evidence can create an impression that the employee was involved in the incident. However, in workplace investigations, a feeling or impression is not enough for the investigator to be satisfied as to guilt.

Whether available evidence is direct or circumstantial, allegations in workplace investigations are determined according to the civil standard of proof, known as the balance of probabilities.

BALANCE OF PROBABILITIES

In essence, the balance of probabilities means that the investigator must determine that it is more probable than not that the events occurred. This may require the investigator to compare competing versions of events from various witnesses to determine which version is more probable.

But Australia’s High Court has determined that there is more to the standard than this simple formula. In the famous case of Briginshaw v Briginshaw, the High Court held that a court should not lightly find that a serious allegation has been proved from circumstantial evidence alone. The High Court has since determined that there are no hard and fast rules in determining circumstantial evidence and the question is simply whether the allegation has been proved on a balance of probabilities.

APPLYING THE STANDARD OF PROOF

In the context of a workplace investigation, consider a scenario of alleged time sheet falsification, where there is evidence that:

  • The employee under investigation consistently failed to complete projects on time.
  • Phone records showed regular outgoing calls from the employee’s assigned mobile phone during work hours from non-work locations at around the end of school hours.
  • The employee’s children attend a school in the same area in which the phone calls originated.

The question is whether it is reasonable to infer from this circumstantial evidence that the employee regularly attended to personal matters during work hours, for example:

  • Collecting children from school.
  • Failing to return to work, even though the timesheets show that they worked an eight-hour day.

The employee might respond to the allegations by saying that:

  • They cannot remember making any phone calls at a regular time to a regular place.
  • They sometimes lent their phone to close family members who could have made the calls.

In this case, the investigator should consider the pattern of behaviour revealed by the outgoing telephone records and determine whether it is probable that the employee’s relatives made these phone calls. The more serious the allegations, the more carefully the evidence should be considered before reaching a conclusion.

In this situation, the investigator would interview all possible witnesses to try and find some direct evidence. If there is none and the view is that the circumstantial evidence is not strong enough, the employer may consider hiring a private investigator to determine what the employee does when they leave work each day.

HANDLING CIRCUMSTANTIAL EVIDENCE

It’s not ideal to be dealing with only circumstantial evidence when conducting an investigation. Witnesses and documents are very useful and as they are direct evidence, they carry much more evidentiary weight. But in circumstances where there is no direct evidence, as much circumstantial evidence as possible should be collected and analysed. If relying solely in circumstantial evidence in an investigation, proceed with great caution and seek legal advice before determining the outcome of the investigation.

Harriet Stacey
Harriet Stacey

Owner, WISE Workplace

Harriet Stacey is a founding member and Chief Executive Officer of WISE Workplace, a national Australian firm providing investigative services in relation to workplace misconduct since 2002. She has designed, implemented and managed the workplace investigations processes for leading government agencies, corporations and the not for profit sector, trained thousands of HR and compliance professionals to conduct investigations and has conducted and overseen over a 1000 investigations of fraud, discrimination, bullying and harassment, sexual harassment, child protection and inappropriate use of ICT resources.

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