Hearsay and unfair dismissal cases

  1. information received from other people which cannot be substantiated; rumour.
    “according to hearsay, Bez had managed to break his arm”





    idle chatter
    idle talk
    mere talk






    on dit





    the grapevine







    confirmed facts
    • LAW
      the report of another person’s words by a witness, which is usually disallowed as evidence in a court of law.
      “everything they had told him would have been ruled out as hearsay”

“Hearsay evidence

[14] The Commission is not bound by the rules of evidence and procedure in relation to a matter before it. 11 The Commission does, however, tend to follow the rules of evidence as a general guide to good procedure.12

[15] Much of the evidence relied on by New Horizons to support these allegations was hearsay. I admitted into evidence the hearsay material relied on by New Horizons. As part of my consideration of each allegation relied on by New Horizons, I will consider how much, if any, weight should be attributed to the hearsay material. A number of authorities are relevant to this issue.

[16] In Pochi v Minister for Immigration and Ethnic Affairs, 13 Justice Brennan, then President of the Administrative Appeals Tribunal of Australia, made the following observations (at 491-2):

“How are facts to be proved, and how is the sufficiency of proof to be determined when there are no rules of evidence binding upon either the Minister or the Tribunal? Section 33(1)(c) of the Administrative Appeals Tribunal Act provides that: ‘the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.’ Although the Tribunal is governed by statute in the approach which it must take in assessing the evidence, and the Minister is not, I do not know that the statute confines the Tribunal to an approach which is more restricted than the approach which the Minister might properly take in assessing the same evidence. The Tribunal and the Minister are equally free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that ‘this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force’, as Hughes C.J. said in Consolidated Edison Co. v. National Labour Relations Board. To depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force, as Evatt J. pointed out, though in a dissenting judgment, in The King v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott: ‘Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, ‘bound by any rules of evidence’. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer ‘substantial justice’’. That does not mean, of course, that the rules of evidence which have been excluded expressly by the statute creep back through a domestic procedural rule. Facts can be fairly found without demanding adherence to the rules of evidence. Diplock L.J. in R. v. Deputy Industrial Injuries Commissioner; Ex parte Moore said: ‘These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than that it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.’”

[17] Secretary, Department of Human Services v Sanding 14 concerned an application for judicial review of a decision of the Children’s Court, a tribunal that is not bound by the rules of evidence. In that case Bell J made the following observations (at [133]):

“The material which may properly support a decision of a court or tribunal can legitimately come from a variety of sources, might occupy different points along a spectrum of probative force and reliability and, depending on the issues and circumstances, might require different treatment. Hearsay evidence is admissible if it is fairly reliable, although the weight to be given to it will need to be considered. Evidence which is not the best evidence may be admitted, but if it is challenged and the issue is important it is the best evidence which may be required. The court or tribunal may act on written submissions containing assertions of fact, and statements made from the bar table by the parties or their legal representatives, but if the asserted facts are in serious dispute and concern important issues, it may be necessary to insist on much more.”

[18] In the Enterprise Flexibility Agreements Test Case, 15 a Full Bench16 of the Australian Industrial Relations Commission made the following observations in relation to the principles of natural justice in the context of non-disclosure of the names of union members:

“It is clear that members of the Commission are bound to act in a judicial manner and the principles of natural justice are applicable to hearings before the Commission (R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; Re Australian Bank Employees Union; Ex parte Citicorp Australia Limited (1989) 167 CLR 513; 29 IR 148).

The term natural justice in the context of administrative decision-making has been essentially equated to an obligation to act fairly or to accord procedural fairness (Kioa v West (1985) 159 CLR 550 at 585 per Mason J).

The requirements of natural justice or procedural fairness are not prescribed in a fixed body of rules. What is required in one case may be quite different from what is required in another. In Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 Tucker LJ said:

‘The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.’

Further in Mobil Oil Australia Pty Ltd v Commission of Taxation (Cth) (1963) 113 CLR 475 at 504 Kitto J said:

‘What the law requires in the discharge of a quasi-judicial function is judicial fairness. This is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances.’

The task of determining whether there has been adequate compliance in a particular case may often present difficulty.

In these proceedings Mr I Douglas QC has argued that it is a denial of natural justice to have evidence adduced against a person without that person knowing what the evidence is and being given an opportunity to test the evidence. Two authorities are relied on in this regard: City of Brighton v Selpam [1987] VR 54 at 59; Hurt v Rossall (1982) 64 FLR 102 at 110. It is argued that the application of this proposition to the issue before the Commission requires that the names of those employees said to be union members must be disclosed when eligible union status is contested. Generally, parties must be provided with an adequate opportunity to challenge or contradict material advanced against them (Board of Education v Rice [1911] AC 179 at 182 per Lord Loreburn LC). However, it does not necessarily follow that the only method of challenge or contradiction which would be regarded as acceptable is the capacity to cross-examine the author of such material (T A Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992 at 995; R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228).”

Longobardi v New Horizons Enterprises Limited (2021) FWC 2203 delivered 21 April 2021 per Saunders DP