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.
Conclusion
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.
Australian Emergency Law 
I thought and was told the same thing about diary entries and file notes would protect me. During 2012/2013 I experienced a bully manager, after some time I lodged a complaint and was suspended 2 weeks after lodgement. I thought my file notes and diary entries would constitute as evidence however these were dismissed outright by the fire service I worked for. By the by witness statements were also dismissed and not counted as evidence.
So diary entries and file notes aren’t work the paper they’re written on.
However the person who now has my job was able to submit pieces of paper without date or name and usually one line of text. An example five years ago (from 2012) I had used the “F” word….. This person as I said now holds my position as I was ultimately dismissed.
Michael, the point of the post is that file notes are not in fact evidence, they are however an aide for any person to remember the details and their story. Just because you have file notes doesn’t mean anyone other than the author will see them and it doesn’t mean that a decision maker will accept that they record the correct facts as they will always be written by a party with an interest. Notes written say, after a fire, when no-one knows if they ever will be called upon or what the issues might be (the sort of notes written by Euan Ferguson have weight because they are not written with a dispute in mind. Notes written in the sort of situation you and my correspondent have described will always be viewed with skepticism as they are likely to be ‘self serving’. So file notes will not protect you, but they may help a person remember details and allow them to tell their complete story.
Hi Michael, the other reason that file notes can be useful is to ‘rebut an allegation of recent invention’. So while the notes won’t usually be admissible evidence, if the maker of the notes is cross-examined on the basis that they only made their version up ‘yesterday’, or ‘when they were spoken to by their lawyer last week’, or whatever, the notes that disprove this suggestion of ‘recent invention’ can become admissible. The lawyer for the other side likely won’t want the notes to go in, so is unlikely to make this allegation if they know the notes exist. So having made a file note prevents this sort of allegation being made against you in cross-examination at all.
true enough; it also cuts both ways, if the notes are inconsistent with current evidence they can be used to show that the story has changed.