The answer is “yes”.
In Australia, the findings in a workplace investigation are made on the ‘balance of probabilities’, that is the civil standard of proof.
A fact is proven, on the balance of probabilities, if its existence is more probable than not, or if it is established by a preponderance of probability.
However, the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect whether an allegation has been proven to the reasonable satisfaction of the inquirer.
In serious matters, “reasonable satisfaction” should not be produced by inexact evidence, indefinite testimony or indirect inferences. This is what is commonly referred to as the “Briginshaw” principle.
Contrary to a reasonably common misconception, the principle in Briginshaw does not create a third standard of proof somewhere between the balance of probabilities and the criminal standard of beyond reasonable doubt.
In essence, it means that the more serious the allegation, the better the quality of evidence that is required to satisfy the inquirer that the allegation is proven on the balance of probabilities. For example, a serious allegation can still be proven by the uncorroborated evidence of a complainant, as long as the evidence is sufficiently credible and precise.
As such, making a finding “on the balance of probabilities” is not a sterile, mathematical exercise of being satisfied 51:49 that the allegation is proven – the finder of fact must reach a level of “actual persuasion” that the allegation has been proven.
