Should the outcome of a workplace investigation be taken on review, the integrity of the evidence, amongst other aspects, will come under scrutiny.
In cases where documentary evidence is relevant, it can be valuable to present expert evidence or obtain an opinion from a document examiner.
But as a recent NSW case involving document examination demonstrates, it is also essential that the workplace investigation has been conducted and evidence gathered with procedural fairness top of mind.
A document examiner is a qualified professional who conducts forensic investigations of documents. This might include the handwriting, the origin of a document (including whether it is an original, a facsimile or a photocopy), and whether entries on a document have been changed or deleted.
Although there are many ways in which document examiners can be helpful, they are generally called upon to provide expert evidence in relation to the authenticity and origin of important documents. This can include:
Document examination is considered a forensic science, meaning that it is conducted according to verifiable and objective scientific principles.
In this regard, a document examiner can be relatively certain when assessing types of ink or paper with a view to determining the origin of a document and whether it is an original or a copied version. This becomes much more difficult in the area of handwriting analysis, which is ultimately an inexact science. Handwriting analysis relies upon the document examiner's individual interpretation of whether two handwriting samples match each other.
USE IN CRIMINAL PROCEEDINGS
Although there is substantial use for document examination in the workplace disputes and civil contexts, the science is also extremely important in criminal proceedings.
In particular, document examiners might be called upon to determine whether a document is authentic or a forgery, or whether a document has been altered to change its original meaning - for example the alteration of a figure on a cheque, or a fraudulent annexure to a will.
Bartlett v Australia & New Zealand Banking Group Ltd  NSW... demonstrates the importance of document examination as well as its limitations. Prephaps even more importantly, the case demonstrates why it is of paramount importance that any workplace investigation process proceeds in accordance with the principles of natural justice.
In Bartlett, a former ANZ State Director was awarded an unfair dismissal payout in excess of $100,000. He had been summarily dismissed for alleged serious misconduct, against the background of an allegation that he had altered a confidential, internal email and then forwarded that document to an external party, a journalist.
The NSW Court of Appeal determined that it was not relevant whether the bank believed that the director had altered and sent on the document, but the essential ingredient in the dismissal was whether the director had in fact committed the misconduct of which he had been accused.
As the employer, the bank carried the onus of proof to demonstrate that the misconduct had occurred and could be proven, however, the handwritten evidence on which the bank relied to prove the misconduct ultimately did not support any such conclusion.
Although the bank had utilised the services of a document examiner to assess whether the director's handwriting matched that on the envelope addressed to the journalist, the bank was found to have denied the director natural justice in failing to provide him a copy of the handwriting sample used and therefore effectively denying him the ability to obtain a responding opinion.
There were also various other factors, including incorrectly comparing cursive and print writing, which caused the court to determine that the handwriting expert's evidence should not be accepted in any event.
The Bartlett case study confirms how essential procedural fairness is in all internal and external workplace investigations.
Contact WISE Workplace to undertake investigator skills training, or to arrange to have one of our highly qualified investigators assist you with all aspects of your workplace investigation, including providing advice on whether the services of a document examiner might be helpful.
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