Evidence

See Fair Work Act ss.590 and 591

Section 590 of the Fair Work Act outlines the ways in which the Commission may inform itself including by:

• requiring a person to attend the Commission
• requiring written and oral submissions
• requiring a person to provide copies of documents
• taking evidence under oath or affirmation
• conducting inquiries or undertaking research, or
• holding a conference or a hearing.

Section 591 of the Fair Work Act states that the Commission is not bound by the rules of evidence and procedure (whether or not the Commission holds a hearing).

Instead, the rules of evidence ‘provide general guidance as to the manner in which the Commission chooses to inform itself’.[211]

Commission Members are expected to act judicially and in accordance with ‘notions of procedural fairness and impartiality’.[212]

Commission Members are ultimately expected to get to the heart of the matter as quickly and effectively as possible, without unnecessary technicality or formality.[213]

Following rules of evidence – Employer used illegally obtained evidence for allegation of theft

Walker v Mittagong Sands Pty Ltd T/A Cowra Quartz [2010] FWA 9440 (Thatcher C, 8 December 2010).

Facts

The employee was accused of stealing oil from the employer. After becoming suspicious that the theft had occurred, the employer searched for and took samples of oil from the employee’s vehicle, without the employee’s authority, in order to have it tested. Mr Walker made an unfair dismissal claim, in which he submitted that he had not stolen the oil, and that the evidence of the oil sample should not be admitted.

Outcome

While s.591 of the Fair Work Act provides that the Commission is not bound by the rules of evidence it does not mean that such rules are irrelevant.

The Commission was guided by s.138 of the Evidence Act 1995 (Cth) in deciding whether to exclude the evidence. Having found that the evidence was unlawfully obtained or in consequence of evidence that was unlawfully obtained, the Commission considered whether the desirability of admitting the evidence outweighed the undesirability of admitting such evidence.

The Commission exercised its discretion to exclude the evidence.

Relevance

After taking all of the circumstances into consideration, including giving appropriate weight to the factors in s.138(3), the Commission held that the undesirability of admitting the evidence outweighed the desirability of admitting the evidence.

While the power to admit or exclude challenged evidence is discretionary, that discretion must be exercised judicially in the interests of justice. The interests of justice are not confined to the interests of the parties but extend to include the broader public interest in the proper administration of justice.