This question is phrased as a question on industrial law, rather than emergency law but the issues have wider implications including for emergency workers.
I have always been of the understanding that if a person is subject to, say, unacceptable behaviour from someone such as their manager, they should keep file notes/diary entries of ongoing occurrences of this behaviour so that a pattern can be established. However I was recently informed that such notes can only be used if the person who was having notes written about them was actually informed that these notes were being written. In other words, if a person isn’t told diary entries are being made detailing their unacceptable behaviour, then any notes substantiating this behaviour won’t be referred to in any subsequent unacceptable behaviour investigation. It should be noted the person making this assertion to me said it related to Commonwealth law, but not specifically which law!
This doesn’t seem right to me as I have often advised staff to keep such contemporaneous notes. Can you please advise if diary notes can be used in a case of harassment / unacceptable behaviour if the perpetrator was not informed the notes were being taken.
I can’t address the industrial law issues and perhaps there is some rule in industrial law or in some Commonwealth tribunal that says the notes can’t be used. Speaking more generally, about the use of personal notes, they are not ‘evidence’ and can’t be put into evidence to prove that what is recorded is true, because that is called ‘hearsay’. My definition of ‘hearsay’ is ‘an out of court statement admitted for the truth’. A diary is an out of court statement, that is it was written ‘out of court’ so if you want to put the diary before a court to say ‘look it must be true it’s in my diary’ then that is an example of prohibited hearsay evidence. So what use are file notes? The text below is taken from my book Emergency Law (2013, 4th ed, Federation Press) p 18:
The other use of records is an aide-memoir or a tool to assist the person who wrote the record to refresh their memory should they be called into court to give evidence. In some cases where it is clear that the record maker has no recollection of the event, but did make a record at the time, the record may be given in evidence. One can imagine, for example, a fire officer who is called to give evidence in relation to a small fire and who is asked to remember some detail that happened three years previously, after the officer has attended many more fires. The officer may have a vague memory or no memory at all, of the particular fire. The officer may be able to use any record made at the time of the incident to refresh his or her memory about the matter. To return to Lithgow Council v Jackson, discussed above, even if the patient record could not be used to prove how the injuries occurred, it could have been used by the paramedics, if they had been called to give evidence, to ‘jog their memory’ about the case and that may have allowed them to give more accurate evidence about what they saw and observed.
A record used as an aide-memoir does not have to be a “business record” but simply a record made at the time when the events where fresh in the person’s memory. Accordingly even a private notebook or diary entry can be used in this way. This is relevant for people who may provide emergency assistance but not in the course of business. It would be prudent practice, after the event, for anyone who provided assistance at an accident to make a record of what happened, what they saw, heard and did so that the record can be used to refresh their memory at a later date.
In a book that has just published, Stuart Ellis and Kent MacCarter (eds) Incident Management in Australasia: Lessons Learnt from Emergency Responses (CSIRO Publishing, 2016) Euan Ferguson reflects on his experience as Chief Officer of the South Australian Country Fire Service during the 2005 Wangarry bushfires. One of his lessons (p 9) is:
Write things down. Much of my evidence at the Wangarry Coronial was based on detailed notes I took in the period leading up to and during the fire. Because of these notes, there was a story to tell. It was a story that was evidenced in my own hand and one that I was able to repeatedly and consistently return to.
Readers, and my correspondent, will note that I have not in fact answered or even attempted to answer the specific question as it relates to industrial law but whether or not the notes can be formally admitted into evidence, whether it’s an industrial matter or a coroner’s inquest into a fire or death, contemporaneous notes, that is notes written at the time of or soon after the event have a vital role to play in helping a person remember what happened and the details. They help a person tell their story.