When Your Story and Your Evidence Don’t Match (and Why Tribunals Don’t Care About Your Group Chat)

You don’t win cases in the Fair Work Commission (FWC) or at human rights commissions because you swear the loudest. You win because your evidence proves what you say probably happened. If your documents and witnesses don’t stack up, the case will tank—no matter how strongly you feel about your version of events.

Facts beat vibes

The FWC isn’t a court and it isn’t bound by the formal rules of evidence, but it still has to base findings on material with rational probative force. Put simply: the Member has to be persuaded by evidence that actually proves something—emails, payroll records, policy documents, contemporaneous notes, screenshots with metadata, witnesses who were there. If the material is flimsy, contradictory or plainly made after the fact to “fit the story,” it carries little to no weight.

The standard: balance of probabilities (with a reality check)

The civil standard applies: more likely than not. For serious allegations—fraud, sexual harassment, conspiracy—the Commission applies the Briginshaw caution: the more serious the claim and consequences, the more cogent the evidence needs to be. That does not raise the standard to “beyond reasonable doubt,” but it does mean you won’t get home on gossip, innuendo, or a pile of “he said/she said.”

Social media clown pile‑ons are not evidence

How this plays in the FWC

• FWC can inform itself in flexible ways (require documents, take sworn evidence, hold inquiries). It isn’t shackled to the Evidence Act—but it still must avoid unfairness and base findings on reliable proof.

• Serious claims need serious evidence. The Briginshaw principle is routinely applied in unfair dismissal and general protections matters. Don’t expect slender inferences or online whispers to carry the day.

  
  

How this plays at the Australian Human Rights Commission (AHRC)

• Conciliation is informal. It’s designed to resolve disputes quickly and flexibly rather than run mini-trials.

• Not bound by evidence rules in inquiries. When the Commission examines or inquires, it can inform itself as it thinks fit and isn’t bound by the rules of evidence.

• What’s said in conciliation is off-limits later. Statements made during AHRC conciliation are generally inadmissible if the matter proceeds to court after termination. So trying to weaponise “what they admitted at conciliation” will usually backfire.

• Missed at the AHRC? If a complaint is terminated, you can file in the Federal Court or the Federal Circuit and Family Court—typically within 60 days. Then the regular rules of evidence and civil procedure apply.

  
  

The “old chestnut”: “He pretended to be a lawyer.”

This smear shows up whenever a weak case is flailing. Here’s the adult version:

• Unqualified legal practice is an offence. Under the Legal Profession Uniform Law (e.g., NSW/Vic/WA), it’s illegal to engage in legal practice or hold yourself out as entitled to practice if you’re not qualified. Penalties include fines and, in some jurisdictions, imprisonment. But it’s a criminal allegation—you need proof, not a vibe.

• How you actually prove it: show the representations (website, emails, invoices, business cards), show reliance, show the person isn’t admitted or doesn’t hold a practising certificate (use the regulator registers), and—critically—show they did something that is “legal practice.”

• FWC reality check: the FWC allows lawyers or paid agents to represent parties with permission under s 596. Mislabeling a permitted “paid agent” as a “fake lawyer” is a tell. The Commission knows the difference and asks for permission notices (hello, Form F53).

If you want to run this allegation without credible, contemporaneous proof, don’t. It’s the practice of shit people—and it usually exposes the accuser’s own lack of moral fibre and evidence.

Social media clown pile‑ons are not evidence

When a cluster of low moral fibre clowns and creatures of the night find each other online, the echo chamber can feel persuasive. In a tribunal, coordinated posts, recycled talking points, and after‑the‑fact witness “alignment” are red flags. The Commission looks for independent, contemporaneous material and consistent testimony tested in cross‑examination. A dozen screenshotted DMs repeating the same invented detail are worth less than one original email written when the event actually happened.

What actually moves the needle (and what doesn’t)

Carries weight:

• Dated emails, letters, rosters, time-sheets, CCTV, access logs

• Signed policies, training records, warnings, meeting notes

• Witnesses with first‑hand knowledge who withstand cross-examination

Usually dead weight:

• Group chats built after lawyers get involved

• “Everyone knows…” statements and anonymous tips

• Cut‑and‑paste witness stories, obviously “groomed” to match

Serious allegations checklist (the Briginshaw reality):

• Identify the specific act(s) alleged (who/what/when/where).

• Gather contemporaneous documents that prove those acts.

• Test for internal consistency and third‑party corroboration.

• Remove speculation and character attacks; keep what proves the acts.

  
  

When bad claims backfire

The FWC is broadly a “no costs” jurisdiction, but it can order costs where an application or response is vexatious, without reasonable cause, or had no reasonable prospect of success.

How not to be that client

1. Tell your adviser the bad facts early. We can’t fix surprises.

2. Build a timeline with documents. If it isn’t written down (or saved properly), it probably didn’t happen—at least not in a way you can prove.

3. Prioritise proof over polemics. One clean policy breach email beats five pages of spicy adjectives.

4. Don’t invent villains. Allegations like “pretended to be a lawyer” require tangible proof and can boomerang.

5. Stay off the witness-coaching merry‑go‑round. Social media strategy sessions wreck credibility.

   
   

Bottom line

Tribunals are built to sift evidence, not to referee social media feuds. If your story can’t be shown, dated and corroborated, it’s not a case—it’s a catharsis. And catharsis loses.

References

• FWC on evidence (s 590/591; probative force; procedural fairness).

• FWC benchbook on standard of proof and Briginshaw.

• FWC conduct page referencing Briginshaw and Neat Holdings.

• AHRC conciliation guide (informal process).

• AHRC Act: not bound by rules of evidence in inquiries (s 14); conciliation statements inadmissible (s 46PKA); file to court after termination (s 46PO).

• FWC representation rules for lawyers and paid agents (s 596; Form F53).

• Unqualified legal practice offences and how to verify practitioners.