The ability to gather and analyse different types of evidence is one of the most important competencies for anyone who conducts investigations. In Workplace Investigations, there are many different types of evidence that are available that can prove or disprove specific facts about the case. The evidence can help establish an issue or fact by the information they provide. There are many types of evidence that help the investigator make decisions during a case, even if they aren’t direct proof of an event or claim. 

The first rule is that evidence must be relevant to the investigation. If it is not directly related to the case it isn’t relevant evidence. That said, there are many types of evidence that, while not admissible in court, can be valuable to an investigator trying to reach a conclusion in a workplace investigation. And even some evidence that is not admissible on its own may be admissible in conjunction with other types of evidence.

This blog is designed to help you identify 6 Types of Evidences in Workplace Investigations you may encounter and how to use them.

This blog will be structured in the following:

  • Role of Evidence in Investigation Reports
  • 6 Types of Evidence in Workplace Investigations
  • Weighing the Evidence

Role of Evidence in Investigation Reports

Types of evidence contained in an investigation report may include:

  • Witness statements and/or transcripts of interviews
  • Physical evidence such as photographs of injuries or the debris of a broken item.
  • Documentary evidence such as incident reports or contemporaneous file notes.
  • Electronic evidence including emails, text messages and CCTV footage.
  • Expert reports such as medical reports
  • Other documentary support evidence such as rosters, timesheets, fuel cards, behaviour support plans, client profiles etc.

Additionally, in our previous blog, we have compiled five ways to garner more information for an investigation, and how the results will help you deliver a more comprehensive result.

Crucially, the evidence should be relevant and sufficient to support any findings. The more thorough the investigation and weighing of evidence, the better chance of defending an unfair dismissal claim in courts, such as the Fair Work Commission in Australia. 

Learn more about your duties and responsibilities as an investigator here.

Relevance of Evidence

Relevance is a fundamental consideration when it comes to assessing the evidence for any investigation, whether it is a minor matter or something more complex. For evidence to comply with the rules and to be admissible in court there must be a logical connection between the facts which are at issue and the documentation or statements used to determine them.

When obtaining and evaluating evidence, the investigator must be able to recognise what constitutes relevant evidence versus irrelevant evidence.  For example, evidence of someone’s character is irrelevant during a fact-finding investigation, though similar type behaviour or a tendency to behave in a certain way may be – provided it is sufficiently similar to the matters currently under investigation and can be assessed as relevant.

However, by planning ahead, assessing your risks, and thinking your investigation through from the start, you can avoid many of the common pitfalls that can derail an investigation. 

Key Points to Consider during Workplace Investigations

  • The more serious the allegation, the more probative the evidence should be to satisfy a conclusion on the balance of probabilities;
  • Consider all relevant evidence, and test any contradictory evidence;
  • When considering prior conduct, consider the prejudicial effect(degree to which a piece of evidence can prove the allegation it stands for) vs the probative value(extend that the evidence detracts from a court’s ability to determine what happened);
  • Where there is corroborating evidence, consider the possibility of collusion; always test the evidence;
  • When assessing credibility, identify your own biases, assess reliability and consistency and remember, everyone performs differently at interviews.

6 Types of Evidence in Workplace Investigations

Direct Evidence

Direct evidence is evidence of something that a witness has perceived for themselves through one or more of their five senses: something that they have seen, felt, heard, smelled or tasted. This could be the testimony of a witness who saw first-hand an incident of sexual harassment in the workplace.

Indirect/Circumstantial Evidence

Circumstantial evidence is evidence that relies on an inference to connect it to a particular fact or issue or conclusion. For example, if surveillance camera footage of an office records a person removing cash from a safe and a reconciliation of money in the safe found that cash was missing, the footage would provide circumstantial evidence that could be used to infer that the person stole the money. Similarly, the length of skid marks on a road could be used to infer that a driver was speeding at the time of an accident. 

This type of evidence is used to infer something based on a series of facts separate from the fact the argument is trying to prove. It requires a deduction of facts from other facts that can be proven and, while not considered to be strong evidence, it can be relevant in a workplace investigation, which has a different burden of proof than a criminal investigation.

Hearsay Evidence

Hearsay evidence is evidence of something of which the witness does not have direct knowledge or experience but has been told about by some other person. For example, if Bob tells Tom that Mary stole the money, then Tom’s evidence would be considered to be hearsay and potentially unreliable unless it could be supported by circumstantial or direct evidence.

This type of evidence consists of statements made by witnesses who are not present. While hearsay evidence is not admissible in court, it can be relevant and valuable in a workplace investigation where the burden of proof is less robust than in court.

Documentary Evidence

Documentary Evidence is considered to be written forms of proof, such as letters or wills. It is any evidence of an original document or a copy or photographs, films or communications such as emails. Documentary evidence can also include other types of media, such as images, video or audio recordings, etc.

Physical Evidence

As would be expected, evidence that is in the form of a tangible object, such as a firearm, fingerprints, rope purportedly used to strangle someone, or tire casts from a crime scene, is considered to be physical evidence. Physical evidence is also known as “real” or “material” evidence. It can be presented in court as an exhibit of a physical object, captured in still or moving images, described in text, audio or video or referred to in documents.

Forensic Evidence

Forensic Evidence is scientific evidence, such as DNA, trace evidence, fingerprints or ballistics reports, and can provide proof to establish a person’s guilt or innocence. Forensic evidence is generally considered to be strong and reliable evidence and alongside helping to convict criminals, its role in exonerating the innocent has been well documented. The term “forensic” means “for the courts”. Its use in workplace investigations is generally limited to serious cases that may end up in court.

Weighing the Evidence

The term “weighing” is a term that means assessing the credibility and strength of a particular piece of evidence, such as the testimony given by a witness. When gathering evidence from witnesses, it is important to ensure that the evidence that they provide is comprehensive in terms of its probative value i.e. in terms of the extent to which it tends to prove a particular fact or issue. This will generally involve clarifying the finer details of what they say that they saw, when they saw it and clarifying any discrepancies in the evidence provided. The weight of evidence is based on the believability or persuasiveness of evidence. The probative value of evidence which tends to convince a person qf the truth of some proposition or fact does not necessarily turn on the number of witnesses called, but rather the persuasiveness of their testimony. For example, a witness may give uncorroborated but apparently honest and sincere testimony that commands belief, even though several witnesses of apparent respectability may contradict that evidence. The question for the decision-maker is not which side has more witnesses, but what testimony he/she believes. ·A witness’s “opinion” about a person or something will not generally be relevant to a workplace investigation unless the witness is an expert. 

How Polonious can Help

Gathering evidence can often be the most time-consuming part of the investigation. Everything you find out is potential evidence and it’s important to consider every piece of evidence you uncover, whether or not it fits in with your other evidence and impressions related to the case. However, HR teams and investigation teams must be aware that proper documentation and record keeping of incidents and investigations can make a significant difference in preventing risk and liabilities of the organisation. 

All physical evidence must be stored securely and logged. Digital evidence needs to be authenticated, captured, preserved and stored somewhere as well. The Polonious case management system allows investigators and HR teams to document evidence and important documents in a secure, organised and accessible manner. 

Polonious’ ISO27001 certified security ensures your evidence and case files are stored securely, while our detailed security configuration ensures you can keep employees fully anonymous, or known only to specific individuals, depending on the level of anonymity requested.

This blog is designed to help you identify 6 Types of Evidences in Workplace Investigations you may encounter and how to use them.

This blog is designed to help you identify 6 Types of Evidences in Workplace Investigations you may encounter and how to use them.

While hearsay evidence is not admissible in court, it can be relevant and valuable in a workplace investigation where the burden of proof is less robust than in court.

While hearsay evidence is not admissible in court, it can be relevant and valuable in a workplace investigation where the burden of proof is less robust than in court.

All physical evidence must be stored securely and logged. Digital evidence needs to be authenticated, captured, preserved and stored somewhere as well.

All physical evidence must be stored securely and logged. Digital evidence needs to be authenticated, captured, preserved and stored somewhere as well.

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