When to use similar fact evidence in a workplace investigation
Six things you need to know when using similar fact evidence in a workplace investigation
An issue that sometimes arises in workplace investigations is whether an investigator should use “similar fact” or “tendency” evidence in a workplace investigation.
This article explains everything you need to know to have a basic understanding of the use of similar fact evidence in a workplace investigation by answering the following six questions:
What is similar fact evidence?
How can similar fact evidence be used in a workplace investigation?
What are examples of when similar fact evidence was used appropriately and inappropriately in a workplace investigation?
What tests should be conducted to decide whether similar fact evidence should form part of a workplace investigation?
Should the respondent be told that similar fact evidence was used in the investigation and be given an opportunity to respond to the similar fact evidence?
What should the investigator do if they are aware of similar fact evidence but decide not to use it in the investigation?
1. What is similar fact evidence?
Similar fact evidence in the context of a workplace investigation refers to evidence that suggests a pattern of behaviour by an individual. For example, if an employee is accused of bullying, harassment, or reportable conduct, similar fact evidence could include previous complaints or incidents of similar behaviour by that employee or within the organisation. This information could be used to establish conduct and determine the credibility of the allegations being investigated. However, handling such evidence carefully is essential, ensuring its relevance, reliability, and fairness in the investigation process.
2. How can similar fact evidence be used in a workplace investigation?
Substantiating Patterns of Behaviour:
Similar fact evidence serves to substantiate patterns of behaviour, establishing that the current misconduct is not an isolated incident. It helps decision makers recognise that the individual's actions are part of a broader pattern, shedding light on the frequency, severity, and impact of the alleged misconduct.
Strengthening Credibility:
The weight of similar fact evidence lies in its ability to strengthen the credibility of complainants' allegations. When multiple individuals have experienced similar behavior or filed complaints against the same individual can add credibility to their claims.
Identifying Recurring Issues:
A comprehensive workplace investigation goes beyond addressing individual incidents and focuses on identifying recurring issues within the organisation. Similar fact evidence allows investigators to recognise systemic problems and take a proactive approach to addressing them. By understanding the underlying patterns, organisations can implement appropriate measures to prevent future misconduct and create a safer work environment.
Establishing a Pattern of Behaviour:
Similar fact evidence can help establish a pattern of conduct that is relevant to the current investigation. By examining previous complaints, disciplinary records, and performance evaluations, investigators can demonstrate that the individual's behaviour is not an isolated event but a consistent way of acting or responding in certain situations. This establishes a compelling case for the existence of a pattern of behaviour.
Supporting Decision-Making:
When considering similar fact evidence, decision-makers are better equipped to determine appropriate actions or sanctions. By understanding the severity and frequency of the individual's conduct.
Mitigating Denial
In cases where a respondent denies the allegations or attempts to minimise their behavior, similar fact evidence can be helpful for a decision maker in determining whether mitigating factors should be taken into account.
3. What are some examples of when similar fact evidence is used appropriately and inappropriately in an investigation?
Appropriate Use Scenario - Repeated Pattern of Behavior: Several female employees in a company's marketing department independently report that their manager, Mr. Johnson, has been making sexually suggestive comments, invading their personal space, and creating a hostile work environment. Each incident, when investigated, reveals a similar pattern of behaviour where Mr Johnson uses his position of authority to engage in inappropriate conduct towards female subordinates.
Approrpriate Use of Similar Fact Evidence: In this scenario, the consistent pattern of behaviour reported by multiple employees can be considered similar fact evidence. The investigator can use this evidence to support the allegations against Mr. Johnson by demonstrating a recurring pattern of sexual harassment.
Inappropriate Use Scenario - Unrelated allegations : An employee named Sarah accuses her colleague, Dave, of making unwanted advances and inappropriate comments towards her during a company event. During the investigation, the investigator becomes aware of a previous incident where Dave was accused of harassment by a different employee, but the nature of the allegation and the context were entirely different. In the previous incident, Dave was accused of making insensitive remarks during a team meeting, which were addressed through a formal warning but were unrelated to sexual harassment.
Inappropriate Use of Similar Fact Evidence: Despite the differences in the nature and context of the previous allegation against Dave, the investigator decides to introduce it as similar fact evidence to support Sarah's complaint. In the investigation report, the investigator references the previous incident and implies that it indicates a pattern of behaviour by Dave despite the lack of relevance to the current allegation of sexual harassment by Sarah.
Introducing the unrelated previous incident against Dave in this manner unfairly biases the investigation against him. The previous incident involved different circumstances and did not relate to sexual harassment, making it irrelevant to Sarah's complaint. By attempting to use it as similar fact evidence, the investigator creates an unjustified suspicion against Dave, undermining his right to a procedurally fair investigation.
4. What tests should be conducted to decide whether similar fact evidence should form part of a workplace investigation?
When considering whether to use similar fact evidence in an investigation, several factors need to be considered. Here are some key considerations:
Relevance: Determine whether the similar fact evidence is relevant to the investigation. It should have a logical connection to the facts in issue and help establish a pattern or propensity.
For example, if an allegation is made that an employee sexually harassed someone in a particular way and that allegation was similar to another allegation that the investigator was aware of then that evidence would be relevant. However, if, for example, a respondent is accused of bullying and there is similar fact evidence involving sexual harassment, the evidence would probably not be relevant.
Probative Value: Assess the probative value of the similar fact evidence. It should significantly contribute to proving or disproving a relevant fact or issue in the investigation.
Admissibility: Review the admissibility of the similar fact evidence. Ensure that the similar fact evidence was obtained legally.
Reliability: Evaluate the reliability of the similar fact evidence. Consider factors such as the credibility and source of the evidence, the circumstances under which it was obtained, and any potential bias or motive. For example, witnesses or complainants may say something like “he does this sort of thing all the time” but if this nothing more than a statement without any corroboration, it should be given limited or no weight.
Prejudicial Effect: Consider the potential prejudicial effect of the similar fact evidence. If it risks unfairly influencing the investigation or prejudicing the decision maker then the evidence may be excluded.
The key word here is whether it “unfairly” influences the decision-maker.
Necessity: Determine whether the similar fact evidence is necessary to make a finding. If there is sufficient other evidence available to make a finding without the use of similar fact evidence, then it should probably not be used.
5. Should the respondent in an investigation be told that similar fact evidence was used in the investigation?
If similar fact evidence is being used to make a finding then the respondent should be advised of this and be given the opportunity to comment. As with any proposed adverse finding, the respondent should be given sufficient information on what a proposed finding is based on to be able to comment on it before a final decision is made. It should be noted, however, that in the context of a workplace investigation, the respondent does not necessarily need to have access to all of the information available to the decision-maker to be able to make submissions as to why an allegation should not be sustained.
6. What should the investigator do if they are aware of similar fact evidence but decide not to use it in the investigation?
If the investigator is made aware of similar fact evidence and they do not use it, they should make it clear in the investigation report that a decision was made to disregard the similar fact evidence.