Consider a scene often encountered in workplace investigations: two parties involved offering conflicting accounts. No witnesses. No other direct evidence available. The classic ‘one person’s word against another’ scenario.
How do you resolve the conflict? Is plausibility a legitimate factor to help choose between competing versions?
A recent FWC decision has highlighted the role of implausibility when deciding between conflicting accounts in a workplace investigation, and considering the respective credibility of parties.
A Council dismissed a male school crossing supervisor after an investigation found that he had sexually harassed a female after-school volunteer. The volunteer reported that the supervisor had commented on her hair and asked to “bounce” one of her curls. She allowed him to do so despite being uncomfortable so as not to appear impolite. She also reported that the supervisor had looked at her chest and that when, in response to his question about her weekend plans, she replied that she was planning to do some gardening, he made a comment that she was a “dirty girl”.
The volunteer immediately reported the incident to her manager and filed a formal complaint on the next business day. The supervisor denied the allegations but an internal investigation determined the allegations to be substantiated and the supervisor was dismissed.
In finding that the Council had a valid reason to dismiss, the FWC placed weight on the fact that the supervisor had offered “no plausible explanation” as to why the volunteer would fabricate her version of events. The volunteer was found to be a witness of credit in that she was “open, truthful and consistent” in the statements made in her initial complaint and her evidence before the FWC. In simple terms, the volunteer had no motive to make up the incident and this lent credibility to her evidence.
Weight was also placed on the fact that the volunteer reported the incident immediately after it took place, which added support for her evidence.
Takeaways for investigators?
- Plausibility is a valid factor to take into account when weighing conflicting accounts in a workplace investigation. It is reasonable to consider what motive a party might have for making up allegations. The absence of any motive or reason to lie (ie no plausible explanation for fabrication), may lend weight to a complainant’s allegations.
- But just because something is implausible, does not mean it didn’t happen. For that reason, implausibility alone will rarely be enough to satisfy the burden of proof. For that reason, when making findings on the balance of probabilities, look for corroborating evidence for either version. In this case, the volunteer’s contemporaneous report when coupled with the implausibility of her making up the incident, was sufficient to satisfy the Commissioner that the Council’s investigation findings were sound.
Investigators wishing to learn how to apply plausibility and other best practice principles in workplace investigations may wish to consider attending our 1 day workshop, How To Conduct An Effective Workplace Investigation.
