Unfair dismissal cases and the Briginshaw test

This is a summary of the legal effect of the Briginshaw test which apples when a court is assessing credibility when serious issues about the issue are involved.

“[49]  There are serious questions of credibility that was raised in the Respondent’s evidence. It is a serious allegation raised by the Respondent that the Applicant berated and swore at another coworker. I am not reasonably satisfied that the reason for dismissal was substantiated. I reiterate the Briginshaw principle and the assessment of fact on the balance of probabilities, Dixon J said:

 

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. 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 to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.50 [50] The Applicant’s conduct did not amount to any form of misconduct or serious misconduct during the meeting on 11 September 2023. Mr Corey Smith’s evidence did not provide a reliable or credible account of events.  Mr Smith did not appear to raise issues surrounding the Applicant’s conduct, given that the Applicant was working in the office for two days after the alleged incident on 11 September 2023. “

 

Crowley v Modcon Group Pty Ltd  [2024] FWC 1423 delivered 14 June 2024 per Lake DP