Standard of proof of misconduct in unfair dismissal cases

“This is not a criminal trial in which the respondent must exclude all other possible explanations for conduct. I am required to determine this matter on the balance of probabilities and adopt the observations of a Full Bench in Brinks Australia Pty Ltd v. TWU PR922612, Giudice J, Acton SDP, Hingley C, 18 September 2002 in which the Bench applied Briginshaw and said:

“2. The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J. commented in Briginshaw v. Briginshaw:

“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 the answer to the question whether the issue has been proved …”.

There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading.” [footnotes omitted]

[7] It seems to us beyond doubt that the standard of proof to be applied in Commission proceedings is proof on the balance of probabilities. While it is true that the strength of the evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of what it is sought to prove, the standard of proof never changes. The Commissioner indicated that he thought it appropriate to apply a higher level of satisfaction in relation to findings of fact involved than the bare civil onus of the balance of probabilities. That was an error of law.

[8] It is clear, as we have already indicated, that his conclusion on the issue of whether Mr Pena had [acted as alleged] was a material factor in the Commissioner’s decision that the termination was harsh, unjust and unreasonable. The Commissioner went on to conclude that he was not satisfied, “to the level which I require” that Mr Pena [engaged in the conduct alleged]. In the circumstances the error of law was a material one. We cannot exclude the possibility that if the Commissioner had applied the civil standard of proof on the balance of probabilities his finding concerning the critical issue might have been different.”

Campbell v Qube Ports Pty Ltd T/A Qube Ports & Bulk (2017) FWC 1211 delivered- 16 March 2017 per Hamilton DP