In short. A statement is only the communication — an assertion that something is so. It becomes a statement of fact only when it is supported by credible, testable evidence: documents, records, an artifact, or the account of a witness who saw what happened and can be questioned about it. In New Zealand's employment jurisdiction the Employment Relations Authority and the Employment Court may receive evidence broadly under section 189 of the Employment Relations Act 2000, but breadth of admission does not lower the standard of proof. An unsupported assertion carries little weight; a statement of fact backed by reliable material sits at the top of the evidential hierarchy. The principles that govern this are drawn from the Evidence Act 2006.
The distinction is foundational, and it is easy to blur. A statement is any assertion — spoken, written, or expressed through conduct intended as an assertion. An allegation in a statement of claim, a remark made in a disciplinary meeting, a line in an email, a sworn brief of evidence, even an opinion: each is a statement. The Evidence Act 2006 treats a statement as the medium, not as proof of anything. A statement made by a person who is not a witness, offered to prove the truth of its contents, is a hearsay statement and is treated differently again.
A statement of fact is narrower. It is an assertion that purports to establish something as true and verifiable — something that can be tested, proven, or disproven. It is distinct from a statement of opinion, of belief, or of legal submission. Witnesses are called to give evidence of facts; the decision-maker's core task is to make findings of fact from the evidence, deciding which assertions have been proven to the required standard. The crucial difference is one of substance and purpose: a statement is the vehicle, while a statement of fact is the content asserting a reality that evidence can stand behind.
The Employment Court drew exactly this line in Wiles v Vice-Chancellor of the University of Auckland [2023] NZEmpC 45. Considering what a statement of claim should contain, the Court explained that a pleading sets out the general nature of the claim and the facts (but not the evidence of the facts) on which it is based. The pleaded assertion is the claim; the evidence is what is later called to prove it, and what the other side may test by cross-examination. The assertion and its proof are two different things, and the second does not follow automatically from the first.
| The question | A bare statement | A proven statement of fact |
|---|---|---|
| What it is | An assertion that something is so. | An assertion that has been established as true to the required standard. |
| What stands behind it | Often nothing beyond the speaker's say-so. | Documents, records, an artifact, contemporaneous notes, or a witness who perceived the event. |
| Can it be tested | Frequently untested; the maker may be unavailable for questioning. | Open to cross-examination, corroboration, and comparison with independent material. |
| Typical weight | Low, and lower still where the assertion is self-serving or speculative. | High, and highest where it is corroborated by reliable, independent evidence. |
Two separate questions run through every evidential assessment, and conflating them is a common error. The first is admissibility: may the decision-maker look at this material at all? The second is weight: now that it is admitted, how much does it prove? A statement can clear the first hurdle and still fail the second.
The starting point for admissibility is relevance. Under section 7 of the Evidence Act 2006, all relevant evidence is admissible unless a rule excludes it, and evidence is relevant if it has a tendency to prove or disprove something of consequence to the proceeding. Relevance is a low gate. Clearing it tells you only that the material may be considered — not that it is true, and not that it is enough. Weight is the separate, evaluative judgment the decision-maker makes once the door is open, and it is where a bare statement and a proven statement of fact part company.
The employment institutions are not bound by the strict rules of evidence that apply in some other courts. The Employment Relations Authority investigates rather than conducts an adversarial trial, and its powers to call for and receive evidence are set out in section 160 of the Employment Relations Act 2000. The Employment Court may exercise its jurisdiction in equity and good conscience under section 189 of the Employment Relations Act 2000, receiving such evidence and information as it thinks fit, whether strictly legal evidence or not.
That breadth is sometimes misread as an invitation to treat anything said as if it were established. It is not. In Lyttelton Port Company Limited v Pender [2019] NZEmpC 86 the Employment Court confirmed that section 189 of the Employment Relations Act 2000 frees the Court from the strict rules but does not free it from analysis. The discretion is the starting point, not the answer; it is the twin principles of equity and good conscience that guide how evidence is weighed, and the rules in the Evidence Act 2006 remain a strong guide to reliability even where they do not bind. A wider door for admission is not a lower bar for proof.
A large part of weighing evidence is separating what a witness factually perceived from what they merely think. The general position under section 23 of the Evidence Act 2006 is that a statement of opinion is not admissible. There are two principled exceptions. Section 24 of the Evidence Act 2006 allows any witness, expert or not, to state an opinion where that is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived. Section 25 of the Evidence Act 2006 admits an expert's opinion where the fact-finder is likely to obtain substantial help from it.
The Employment Court worked through these provisions in Coy v Commissioner of Police [2010] NZEmpC 103, a judgment devoted to the admissibility of evidence. The Court accepted that lay witnesses may be given a limited latitude to express a view, but it held firmly that advocacy masquerading as evidence will not assist the Court and should not be given. An assertion of where the truth lies, dressed up as evidence, adds nothing; it remains a submission about the facts, not proof of them. Two further cautions matter. An expert's opinion is worth little if the expert is not genuinely independent, a point the Court returned to in Wiles v Vice-Chancellor of the University of Auckland [2023] NZEmpC 45. And although the old rule barring opinion on the ultimate issue has gone, the decision on the ultimate question — for example, whether a dismissal was justified under section 103A of the Employment Relations Act 2000 — remains for the decision-maker, not the witness.
Much of what is offered as a statement is hearsay: an out-of-court assertion put forward to prove the truth of its contents. Under section 17 of the Evidence Act 2006 a hearsay statement is not admissible unless an exception applies. The principal exception is reliability based.
Under section 18 of the Evidence Act 2006, a hearsay statement is admissible only where the circumstances relating to it provide a reasonable assurance that it is reliable, and the maker is either unavailable as a witness or could not be called without undue expense or delay. Reliability is the gatekeeper; it is also, once the statement is in, a measure of how much it is worth.
Even within those limits, weight tracks reliability. A formal, signed brief of evidence from someone who cannot be cross-examined may be admitted and given some weight, but it will almost always be worth less than the live, tested evidence of a witness who appears and answers questions. The Employment Court applied this framework directly in Wiles v Vice-Chancellor of the University of Auckland [2023] NZEmpC 45, assessing proposed evidence against the hearsay provisions of the Evidence Act 2006 and asking, in each instance, whether the assurance of reliability was there.
The clearest statement of the principle in the employment jurisdiction comes from a remedies dispute. A worker may sincerely assert that a dismissal devastated them, but the assertion alone does not establish the loss; the loss has to be shown.
Lim v Meadow Mushrooms Limited concerned a challenge to the level of compensation awarded for humiliation, loss of dignity, and injury to feelings. The Employment Court held that such factors must be demonstrated, and that Adequate evidence must be provided so as to permit the decision-maker to exercise its discretion on an informed and principled basis. Because the worker's brief of evidence had not addressed the factors at all, the decision-maker had been left with only limited material, and the award could not safely rest on the assertion of distress standing alone.
Lim v Meadow Mushrooms Limited [2015] NZEmpC 192
The lesson generalises well beyond compensation. An employer's assertion that misconduct occurred, an investigator's conclusion that an allegation is made out, a worker's assertion of loss — none of these is a fact until it is demonstrated by evidence that can be examined. The decision-maker is not merely entitled but bound to ask, of each assertion, what stands behind it.
In employment matters, as in other civil proceedings, the standard of proof is the balance of probabilities: the party asserting a fact must persuade the decision-maker that their version is more probable than not. There is a single civil standard, but it is applied with sensitivity to what is at stake. Where an allegation is serious — dishonesty, or assault, for instance — the New Zealand courts have consistently required more cogent and compelling evidence before being satisfied that it is more probable than not. The standard does not change; the quality of evidence needed to meet it does.
Two practical points follow. First, corroboration matters: an assertion supported by independent documents or a second witness is worth far more than the same assertion standing alone. Second, the decision-maker is increasingly wary of resting findings on a witness's demeanour — how confident or hesitant they appear — recognising that a composed witness may be wrong or untruthful and a nervous one entirely honest. Weight is built from the substance and reliability of the evidence, not from the manner of its delivery.
A determination must show its working. Section 174E of the Employment Relations Act 2000 requires a written determination of the Employment Relations Authority to state relevant findings of fact — the very findings that separate proven facts from unproven assertions. Where a determination records no real findings, or treats a bare statement as though it were established, something has gone wrong with the weighing of the evidence.
The route to correct that is specific, and it is not judicial review. A party dissatisfied with a determination challenges it to the Employment Court under section 179 of the Employment Relations Act 2000. A challenge can be pursued de novo — the whole matter is reheard, on the evidence, by the Employment Court — which is the natural mechanism for putting right a determination that mishandled the facts. Judicial review is concerned with the lawfulness of process, not with re-arguing where the evidence pointed; section 184 of the Employment Relations Act 2000 restricts review of these proceedings, and the Judicial Review Procedure Act 2016 is itself expressed to be subject to the jurisdiction of the Employment Court under the Employment Relations Act 2000.
If a determination has treated unsupported assertions as proven facts, the answer is the de novo challenge to the Employment Court under section 179 of the Employment Relations Act 2000, where the evidence is heard afresh — not an application under the Judicial Review Procedure Act 2016, which tests the lawfulness of the process rather than the correctness of the findings.
Underlying all of this is a point of basic fairness. A person is entitled to have a decision that affects them made on proven facts, after a process in which the material against them can be seen and answered — the natural-justice guarantee anchored in section 27 of the New Zealand Bill of Rights Act 1990. Acting on assertion rather than evidence is not only an evidential error; it is unfair.
Legislation cited is linked to the current consolidated text on the New Zealand Parliamentary Counsel Office website at legislation.govt.nz. Case authorities are linked to the Working for Workers case law and reference repository at caselawandreference.workingforworkers.nz. The principle that more serious allegations require more cogent evidence to meet the balance of probabilities, and the modern caution against relying on witness demeanour, are stated as settled New Zealand law rather than attributed to a single authority; they should be supported with the leading cases before being relied upon in any filed document.
Whether the decision-maker is an employer, the Accident Compensation Corporation (ACC), an incorporated society, a tribunal, or any public body exercising a statutory power, a decision that treats bare statements as proven facts can be challenged. We can help you work out where you stand.
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