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Evidence: employer vs. employee

Your credibility is judged by how consistent your story is with common sense.

Frequently asked questions at my training workshops:

  • How do I prove it?
  • It’s my word against the employee’s, right?
  • Why should the tribunal believe me?
  • Don’t they always side with the worker?

Proof “beyond a reasonable doubt” belongs to television drama!

You need to establish your case on a “balance of probabilities.”

Balance of . . . what?

Picture a teeter-totter or see-saw in a child’s playground—

Put all your evidence on one end . . . All of the employee’s evidence on the other end.

Now—look at both sides.


The side with the heavier weight wins!

Whose story is most probable?

  • Is your story believable to an average person?
  • Do your documents match the evidence you give verbally?
  • Do all your witnesses give similar evidence?
  • Is your evidence rehearsed and too perfect? Not good.

Honesty and sincerity is not enough. You must be clear, detailed and consistent with the majority of the other evidence.

Your credibility only matters if your information is relevant. In Friesen v. Fish Bay Seafood, the worker’s religious leader (pastor) testified in a human rights case that involved freedom of religion. The tribunal did not give any weight to his evidence. He was a very credible witness but his evidence had nothing to do with the worker’s performance at work.

Your credibility really matters when your information contradicts that of the other side: Does your verbal evidence at the hearing line up with what you documented months earlier?

The information you provide must be directly related to the issues: You must be direct, open, and tell a story that flows easily

Your credibility is judged by how consistent your story is with common sense.

Note: a tribunal may accept any of your evidence, none of it or some of it at its own discretion.

Andrew Lawson
Health and Safety/Human Rights Advisor, Learn Don’t Litigate

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Andrew Lawson

Trainer and advisor at Learn Don't Litigate
Andrew Lawson is a human rights and health and safety trainer and advisor, currently consulting to both the federal and Ontario governments. Since 1996, he has conducted extensive legal research in the areas of human rights and occupational health and safety law. He has worked in the people management business for over 25 years. Read more
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