united-states employment evidence
Does one-way written communication bear legal standing?
<p>This question is based on <a href="https://workplace.stackexchange.com/questions/137868/how-can-i-get-an-unreasonable-manager-to-approve-time-off">this question over on Workplace SE</a>.  I am neither the OP of that question nor in any way related to the OP, I'm asking this question out of personal curiosity.  In brief, the situation is that the OP has a medical issue, but his boss (verbally) threatened to fire him if he went to the doctor.  Various answers in that thread are suggesting getting written proof that the boss verbally denied the trip to the doctor to use in court later.</p>

<p>Now, here's my question: Clearly, this boss is a jerk.  Also, this boss is probably not an idiot.  If he's being asked to provide in writing something that he said verbally, he's going to know something's up.  Furthermore, he's probably smart enough to know that what he is doing is of questionable legal standing, so getting the boss to provide a written statement that the doctor visit was denied is easier said (written?  Because webforum?  Hah!) than done.</p>

<p>A solution to the above problem was suggested in a comment on an answer:</p>

<blockquote>
  <p>In the very likely case that you submit your request in writing and your boss replies verbally, write back to your boss confirming his denial. "This message confirms that on Tuesday 10am you verbally denied my urgent request for time off at X." Send a Cc to HR and Bcc yourself at a personal email address. Every time you have a "conversation" about this issue verbally, confirm back in writing.</p>
</blockquote>

<p>Assume that the boss does not respond to any of these emails to confirm or deny the content as stated, and the "chain" of emails, such as it is, is completely one-sided, with the OP emailing his boss various things of this nature.  My question is:</p>

<p><strong>To what degree are such emails admissable in court as evidence, and what weight do they carry?</strong></p>

<p>I'm tagging this question as united-states because the original question on Workplace SE was about the USA, but insight into the legal systems of other countries would also be interesting for me, just out of curiosity.  I am Canadian myself, so insight into the legal system in Canada would be of particular interest (I am not in such a situation myself, I just find it interesting out of curiosity).</p>

<blockquote>
  <p>To what degree are such emails admissible in court as evidence, and
  what weight do they carry?</p>
</blockquote>

<p>Your own statement, when offered by you as evidence, is hearsay, unless it comes within an exception to that rule. <a href="https://en.wikibooks.org/wiki/Canadian_Criminal_Evidence/Hearsay/Traditional_Exceptions#Past_Recollection_Recorded" rel="nofollow noreferrer">Recorded recollection</a> might be one of the better exceptions. There is also a chance that you could get it in as a <a href="https://en.wikibooks.org/wiki/Canadian_Criminal_Evidence/Hearsay/Traditional_Exceptions#Business_Records" rel="nofollow noreferrer">business record</a> of the company if you were using a company email account and the company stores all of its email communications. The documents also sometimes come in to <a href="https://en.wikibooks.org/wiki/Canadian_Criminal_Evidence/Hearsay/Traditional_Exceptions#Narrative" rel="nofollow noreferrer">provide fair context</a> for a conversation with a party-opponent's statements that are admissible.</p>

<p>It appears that Canada does not follow the modern British rule (which <a href="http://www.legislation.gov.uk/ukpga/1995/38/section/1" rel="nofollow noreferrer">repealed the hearsay rule in civil cases in 1995</a>), which if it were available, would come in without any difficulty at all. But, Canada does have what it calls a "<a href="https://en.wikibooks.org/wiki/Canadian_Criminal_Evidence/Hearsay/Principled_Exception" rel="nofollow noreferrer">principled exception</a>" (which is somewhat broader than the parallel U.S. residual hearsay exception) that is generally available if the document can be shown to be reliable and there is an unavailable witness, or if there proponent of the document can show that it is reliable and necessary for other reasons.</p>

<p>Even if the document itself is not admissible since it is hearsay, you could still testify as to what the boss said from your own recollection, and then have your lawyer ask you why you are sure that this is what was said. You would answer that you contemporaneously wrote a confirming letter to the boss spelling out what was said and you reviewed it to refresh your recollection before testifying at the hearing or trial.</p>

<p>These kinds of confirming letters are used quite frequently in business and employment litigation. And, in my experience, these statements tend to be surprisingly effective and persuasive, because, while they do not foreclose the possibility that the person writing it was lying or inaccurate in the confirming email account, it does rule out the possibility that you forgot exactly what was said, and you provided the boss with an opportunity to dispute you which the boss didn't feel an obligation to correct.</p>

<p>If one party has a coherent account in confirming emails of what was said, and the other party is trying to remember what happened a year or two earlier without notes from the witness stand, the person with the coherent, documented account is almost always going to come across as more credible unless the other side can show that your confirming emails are not infrequently gross misrepresentations of what really occurred. (I've also dealt with witnesses like that now and then.)</p>

<p><a href="/questions/tagged/australia" class="post-tag" title="show questions tagged &#39;australia&#39;" rel="tag">australia</a> <a href="/questions/tagged/new-south-wales" class="post-tag" title="show questions tagged &#39;new-south-wales&#39;" rel="tag">new-south-wales</a></p>
<p>Under <a href="http://classic.austlii.edu.au/au/legis/nsw/consol_act/ea199580/s71.html" rel="nofollow noreferrer">s71</a> of the <em>Evidence Act 1995</em><sup>1</sup> electronic communications are admissible as evidence of:</p>
<blockquote>
<p>(a) the identity of the person from whom or on whose behalf the communication was sent, or</p>
<p>(b) the date on which or the time at which the communication was sent, or</p>
<p>(c) the destination of the communication or the identity of the person to whom the communication was addressed.</p>
</blockquote>
<p>Further under <a href="http://classic.austlii.edu.au/au/legis/nsw/consol_act/eta2000256/s13a.html" rel="nofollow noreferrer">s14A</a> of the <em>Electronic Transactions Act 2000</em><sup>2</sup>, unless the parties have otherwise agreed, if the recipient provided the email address then it is received &quot;at the time when the electronic communication becomes capable of being retrieved by the addressee&quot;. Having received a communication there is a rebutable presumption that it was read and understood.</p>
<p>So the email is evidence that there was an email - it is not evidence that what is said in the email is true.</p>
<p>The testimony of the sender/receiver are evidence of what was said and the sender can testify that the email is an accurate reflection of the conversation. How much weight is given to the that evidence is up to the trier of fact - probably a Fair Work Commissioner in the first instance as employment disputes are held before an administrative tribunal with appeals to the courts.</p>
<p>Ultimately, such a dispute is a 'he said - she said' situation and the trier of fact will have to weigh the credibility of the witnesses. If what one witness states is supported by a contemporaneous note that was received by the other witness then that will, all else being equal, tend to increase their credibility.</p>
<p><sup>1</sup> The <em>Evidence Act</em> is uniform legislation across <a href="/questions/tagged/commonwealth-of-australia" class="post-tag" title="show questions tagged &#39;commonwealth-of-australia&#39;" rel="tag">commonwealth-of-australia</a>, <a href="/questions/tagged/new-south-wales" class="post-tag" title="show questions tagged &#39;new-south-wales&#39;" rel="tag">new-south-wales</a>, <a href="/questions/tagged/victoria" class="post-tag" title="show questions tagged &#39;victoria&#39;" rel="tag">victoria</a>, <a href="/questions/tagged/tasmania" class="post-tag" title="show questions tagged &#39;tasmania&#39;" rel="tag">tasmania</a> and the <a href="/questions/tagged/australian-capital-territory" class="post-tag" title="show questions tagged &#39;australian-capital-territory&#39;" rel="tag">australian-capital-territory</a>.</p>
<p><sup>2</sup> The <em>Electronic Transactions Act 2000</em> is uniform legislation across all <a href="/questions/tagged/australia" class="post-tag" title="show questions tagged &#39;australia&#39;" rel="tag">australia</a> jurisdictions.</p>
