Australia: Evidence, the Essendon 34, and the employee under suspicion

Key Points:

If you do suspect misconduct or misuse of confidential information, but there's no smoking gun, you might still be able to take the necessary steps to protect your business and other employees.

You suspect your employee has engaged in misconduct or has breached a contractual obligation, but there's no direct proof. You're worried, but you don't think you can take action, because there's no smoking gun. What should you do?

In this, as in so many areas of life, football has some valuable lessons.

On 11 January 2016 the Court of Arbitration for Sport (CAS) handed down its arbitral award which banned 34 players from the Essendon Football Club from playing in the AFL for two years, closing out one of the longest-running scandals in Australian sporting history. It also took an approach to the probative value of circumstantial evidence which is very similar to that under Australian law, especially in the context of employment law.

Building the case against the Essendon 34 without a smoking syringe

CAS had to determine whether it was "comfortably satisfied" that each of the players used Thymosin B4 (TB-4) in the 2012 season. The test of "comfortable satisfaction" is said to be higher that the test of balance of probabilities (which applies in civil matters) but lower than the criminal standard of beyond reasonable doubt.

Presented with a raft of circumstantial evidence, there were two competing ways CAS could consider it:

  • The World Anti-Doping Agency argued that CAS could be comfortably satisfied the players had engaged in doping based on the intertwining of various strands of circumstantial evidence. These, when taken together, would form a cable of sufficient strength to uphold a finding of comfortable satisfaction (the Strands in a Cable approach).
  • The Essendon 34, on the other hand, said that WADA needed to prove each link in a chain from Essendon's sports scientist, Stephen Dank, obtaining the TB-4 to the TB-4 being actually injected into each player. If any link in the chain could not be established by WADA then the whole chain was broken and CAS could not be comfortably satisfied that the doping violation had occurred (the Links in a Chain approach).

The Links in a Chain approach was adopted by the AFL Anti-doping Tribunal in March 2015 when it found that some links in the chain could not be established and therefore ASADA's charges at the initial level could not be sustained.

CAS, however, determined that in anti-doping matters the Strands in a Cable approach is better because it takes into account the cumulative effect of circumstantial evidence.

No smoking gun? No worries

In Australian law circumstantial evidence can be used to prove allegations even if there is no single decisive piece of evidence ("the smoking gun") that proves an event occurred (for example evidence of an eyewitness). While a number of sporting commentators have questioned the Strands in a Cable approach to circumstantial evidence taken by CAS, there is strong support for that approach under Australian law. Indeed, it was expressly endorsed by the Full Federal Court in FWBII v CFMEU [2013] FCAFC 8.

Courts and tribunals must consider all of the evidence put before them. Where that evidence is circumstantial, they should consider whether each of the strands of evidence, when taken cumulatively, supports the finding that the allegations are proven to whatever the requisite standard of proof is in that matter. That standard may be the "balance of probabilities" (as in civil cases), "beyond reasonable doubt" (as in criminal cases) or some other standard such as that of "comfortable satisfaction" applied in anti-doping cases.

The higher the standard of proof, the stronger or more numerous the strands may need to be but Australian law recognises that strands of circumstantial evidence can be used to satisfy even the highest standards of proof in criminal matters.

How does the Strands in the Cable approach play out in employee misconduct?

Take, for example, an employer who suspects that an employee has engaged in theft of goods from the employer. The employer may not have an eyewitness to the theft but there may be a number of strands of circumstantial evidence such as:

  • swipe card records that show that the employee was the only employee present at the depot when each set of goods was taken;
  • evidence from a supplier that they saw the employee and his friend selling goods from a stall at a local market that were the same type as the employer's goods;
  • an email message sent from the friend of the employee inadvertently to the employee's work email rather than his personal email asking if the employee had "got the stuff yet?" ; and
  • a comment made by the employee to other employees in the lunch room in the context of a discussion about people taking stationary items home that "everybody takes stuff from work – it is like a bonus".

While each strand of evidence is not strong enough to make a finding that the employee engaged in theft (and therefore serious misconduct) and might, of themselves, be capable of innocent explanation, the cumulative effect of the strands when woven together may be strong enough for the employer (after proper investigation including giving the employee an opportunity to respond) to make a finding of serious misconduct.

How does the Strands in the Cable approach play out when an employee takes confidential information?

An employer may be concerned that an ex-employee has taken its confidential information and is using it to benefit a competitor. Sometimes these concerns may be prompted by information received from a client or a third party, but there will be no smoking gun. There may be however a range of circumstantial evidence – for example, the competitor knowing the exact price charged by the employer, evidence that the employee sent the information to her home email address, evidence from a customer that the ex-employee called them, on behalf of the competitor, on a private mobile number that is not publicly available, etc.

The strands of circumstantial evidence may be sufficient for the employer to form a reasonable belief that the ex-employee has taken the confidential information and is misusing it. This reasonable belief may be sufficient to commence proceedings against the ex-employee and convince a court that there is an arguable case and that the balance of convenience favours issuing an injunction.

So, if you suspect wrongdoing by an employee or ex-employee...

The first thing to remember is that an employer does not need to have direct evidence of wrongdoing by an employee in order to make a finding that he or she has engaged in misconduct or has breached a contractual obligation and that finding can be upheld by a court or a tribunal.

That means that if you do have suspicions, but your investigations do not lead to a smoking gun, you might still be able to take the necessary steps to protect your business and other employees.

On the other hand, you cannot proceed without sufficient evidence and assessing whether the strands form a strong enough cable can be a challenge.

Lawyers can assist you in conducting your inquiries/investigation and determining the strength of circumstantial evidence. Often clients find, with the right advice, more than enough evidence to weave together a cable of evidence strong enough to support the action the client needs to take.

Postscript: more appeals than Ian Healy

The 34 current and former players have lodged an appeal to the Swiss Federal Supreme Court. This appeal is expected to take a number of months to be heard and determined. It is unlikely, however, to have any impact on the approach that Australian courts and tribunals use to consider circumstantial evidence.


You might also be interested in...

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.