By ALISON PAGE, Legal Counsel

Often it’s not a one-off event; investigations into alleged sexual harassment frequently reveal that on previous occasions the respondent has faced other accusations of inappropriate conduct against fellow employees. This evidence is traditionally known as “similar fact evidence” or “tendency evidence”.

When the investigator considers each alleged incident in isolation, he or she may find insufficient evidence to establish sexual harassment. However, when these events are considered as a series, it may establish a pattern of sexual harassment.

This poses the question: should the investigator use these other incidents to decide whether there is sufficient evidence to establish a tendency by the respondent to engage in the alleged conduct?

For the first time, a recent interlocutory decision in the Federal Court Robinson v Goodman has set a precedent, by establishing judicial guidance about the admissibility of this contested “tendency evidence”. It’s guidance that can also help workplace investigators.

In this case, the owner of a well-known clothing brand was responding to allegations of sexual harassment under the Sex Discrimination Act 1984 (Cth). The respondent was also facing similar allegations in other proceedings, brought by a former employee.

The respondent admitted that certain events did occur, but disputed that the acts were sexual in nature. Justice Mortimer maintained the respondent’s behaviour towards the former employee applicant and a further former employee, established a tendency to “engage in a calculated pattern of sexual pressure and harassment”.

Although Justice Mortimer accepted that criminal cases concerning sexual offences may assist to decide whether tendency evidence is admissible, ultimately the question must be determined on the civil standard, based on the words of section 97 of the Evidence Act 1995 (Cth).

According to Justice Mortimer, section 97 requires a two step process:
1. Is the evidence relevant? This requires consideration and identification of:
a. what facts are disputed about the alleged misconduct of the respondent.
b. the precise details of the tendency evidence.
c. whether the tendency evidence is capable of proving a tendency to behave in the alleged manner.

2. Does the evidence have “significant probative value”?
Probative value” is defined in the Act as “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.  To answer this question, one must weigh up the impact that the tendency evidence could have on the existence or non-existence of the facts in issue.

The following factors may also be considered:
a. the cogency of the tendency evidence
b. the strength of inferences drawn from the tendency evidence as to the tendency of the respondent to act, speak or think in a particular way,
c. the extent to which the tendency evidence increases the likelihood that that a fact in issue did occur.

Assessing the facts before her, Justice Mortimer said it was important to look at similarities in the overall circumstances, when deciding whether to admit tendency evidence. She identified the following broad similarities:

  • Both cases involved employees.
  • The respondent was their boss, the company owner and controlled business operations.
  • Both cases involved attractive females.
  • Both cases involved similar events (e.g. buying trips, fit sessions, photo shoots).

Justice Mortimer maintained that much of the evidence was admissible, although conduct too far in the past, which was not similar enough to the allegations or too general was not admissible.

As a closing word of caution, in accepting tendency evidence, investigators must also apply principles of procedural fairness; such as giving the respondent an opportunity to respond to adverse information that is credible, relevant and significant to the ultimate determination of the investigation.

Otherwise, they may risk prejudice arising from their decision (Lohse v Arthur (No 3) [2009] FCA 1118).

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