What is the Briginshaw Principle?

In 1938 the High Court of Australia made a decision which has had a long-lasting and significant impact on how evidence is evaluated and weighted in Australia. This includes the context of evaluating evidence in a workplace investigation.

The case of Briginshaw v Briginshaw (1938) 60 CLR 336 (http://classic.austlii.edu.au/au/cases/cth/HCA/1938/34.html) related to divorce proceedings where the husband, Mr Briginshaw, alleged that his wife had committed adultery. Mr Briginshaw submitted evidence that Mrs Briginshaw had received a lift home and a kiss from a man after a dance.

The Judge presiding over the case dismissed the allegation made by Mr Briginshaw concerning adultery as he was not satisfied that it had taken place. Mr Briginshaw disagreed with the judgement and appealed this decision because the Judge had set too high a standard of proof and that an “inference’ could be drawn from the actions of Mrs Briginshaw that she had committed adultery.

The High Court considered the appeal and subsequently upheld the original decision. However, in making this decision, the High Court considered the strength of evidence required to prove allegations of a serious nature. Whilst the standard of proof remained, as it still does in civil cases, on the balance of probabilities, the High Court ruled that the strength of evidence required to prove a matter is ultimately dependent upon the seriousness of the allegations.

Justice Dixon, in writing the decision in the High Court appeal, found that serious allegations should be considered cautiously and be determined based upon the “seriousness of an allegation made; the inherent unlikelihood of an occurrence of a given description; and the gravity of the consequences flowing from a particular finding,” (http://classic.austlii.edu.au/au/cases/cth/HCA/1938/34.html).

Common Misconceptions about the Briginshaw Principle

There has often been a misconception that the Briginshaw Principle is a ‘standard of proof’. This is not correct and whilst administrative decision-makers, such as those that are required to make substantive findings in a workplace investigation, are not required by law to apply the Briginshaw Principle in reaching a decision, it would be remiss not to consider it when making findings of fact.

Application of the Briginshaw Principle in Workplace Investigations

The seriousness of the alleged misconduct, which is the subject of the workplace investigation will, in applying the Briginshaw Principle, impact the strength of evidence required to prove such allegation and decide of fact.

The Briginshaw Principle should be applied to all workplace investigations, with the more serious allegations requiring more compelling evidence to substantiate any allegations. Understanding this principle is imperative and will assist investigators in making a fair, reliable and accurate decision based on facts that can withstand judicial, or quasi-judicial review.

Core Integrity are leaders in conducting workplace investigations. If you have any questions regarding the Briginshaw Principle or workplace investigations get in touch with our team. We conduct workplace investigation training for teams and individuals.