Rules of Evidence

Rules of evidence exist to ensure that court hearings are properly and fairly conducted. They are enshrined in legislation.

To be admissible, each piece of evidence must satisfy all the checks and balances set out in the legislation.

EVIDENCE AND THE Fair Work Commission (FWC)

The FWC is not bound by the rules of evidence or procedure in any matter it hears, although it conducts itself in a manner similar to a court, for example witness evidence is heard under oath and document disclosure processes must take place. The rules of evidence serve as a general guide to FWC members about how to determine matters.

Because non-lawyers often appear before the FWC, and because it aims to deal with matters efficiently, it may choose to overlook some rules of evidence in favour of efficient case-flow and to ensure it remains accessible to lay parties.

However, failing to adhere to the rules of evidence may cause you problems such as in the case of Wong v Dong Lai Sun Massage Pty Ltd.

A case in point

In the case of Wong, Wong was employed as a masseur by Dong Lai Sun Massage (DLS). Wong had applied for a temporary work visa and was awaiting the outcome of that application.

Wong claimed that her employment was terminated following absence from work due to injury. She made an adverse action claim under the Fair Work Act. Mrs Dong wanted to represent DLS and made an application to the Federal Court to do so. (Neither party had legal representation at the time of the hearing).

The facts of the case were complex and conflicting. There were allegations of illegal payment methods, employment in contravention of visa requirements, loans from Wong to the employer, whether the employment was casual or full time, confusion over Wong’s duties and the issue of workers’ compensation.

To add to the complexities, neither Wong nor Dong could understand English and neither had sought the assistance of an accredited translator and were seeking to represent themselves.

The judge said that neither party had identified any of the evidence as inadmissible and the court may need to take on that role.  The affidavits that had been filed by the parties did not comply with the court rules and neither party could assist the court because of their inability to speak English.

The judge found that the parties were incapable of assisting the court to understand or resolve the matter.  He refused the application and issued a certificate for DLS to access free legal advice.

tips to gathering quality evidence

  1. If it involves complex legal principles consult a solicitor or engage a professional investigator at the outset
  2. Make sure your evidence is relevant to the dispute
  3. Gather first hand accounts wherever possible
  4. Stick to original documents or provide authentication of the accuracy of documents that are copies
  5. Although circumstantial evidence can be used, you must clearly articulate the reason that the evidence points to a particular conclusion – don’t expect everyone to form the same opinion as yourself!
For more information on using circumstantial evidence in workplace investigations, download our free white paper.
Wise Workplace provides qualified and licensed investigators and trainers to help organisations manage workplace misconduct.

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