7 Chapter 7: Testimony Evidence

The most common source of evidence in a workplace investigation comes from interviews with witnesses and parties to the investigation. This evidence is called testimony evidence. Although complainants should always provide their complaints in writing, they should also be interviewed to ensure that the investigator fully understands the complaint and has an opportunity to probe for further information, explore potential inconsistencies, and assess the credibility of the complainant. A respondent will also need to provide a written response to a complaint, but they too should be interviewed to ensure that their side of the issue is fully explored, provide additional insight into the situation, identify any inconsistencies and assess the credibility of the respondent.

What to Record in an Interview?

What notes should an investigator make during the interview what information should the interviewer capture? It would seem obvious that they would record answers given by the interviewee to the questions asked. Later in this book we will discuss interview questions and how to craft effective questions.

When conducting an interview, the investigator should record only what is said by the person and note any direct observations e.g. complainant is crying, witness is tapping fingers on table. The interviewer should not write down any conclusions in their notes or make personal commentary e.g. this guy is obviously lying, this witness is stupid, the complainant is fake crying. Individuals who were interviewed may request to view an interviewer’s notes and/or the notes may become court documents. Conclusions or personal commentary in the notes will undermine the investigator’s professionalism and credibility.

The interviewer strives to capture the facts of the situation. Remember that facts are evidence, and opinions are not. Whether they are the opinions of the complainant, witness, respondent, or investigator, they can be noted, but these opinions should not be confused with fact. The best evidence collected in an interview is what people have personally seen, heard or experienced. An investigator does not want to accept second-hand information – they must get to the source! What this means is that if a witness says they “heard” something, the investigator should find out who said it and then interview that person. It is not sufficient to take the witness’s word for it.

Formal Written Statements

Sometimes a witness will be asked to write out a formal statement of what they saw, heard, or experienced rather than be interviewed. This saves times because the investigator does not then need to interview the person and can simply read through the account. However, if there is ambiguity in what they person has written the investigator may have follow up questions which will require an interview. If the investigator has concerns with regard to the authenticity of a witness statement, i.e., they are concerned that the witness did not write the statement, they would be better to conduct an in-person investigative interview. Another reason to conduct an in-person interview is if a witness does not express themselves well in writing. If a witness is not sufficiently fluent in the language that the interviewer will use, there is the option to interview a witness with the assistance of a translator.

Sometimes organizations have a requirement to immediately capture the details of a workplace incident in an incident report. This is common when there is a safety component to the incident or security has attended the incident. These reports should be retained as evidence.

Credibility

When an investigator is gathering testimonial evidence, they will seek to establish whether each interviewee is credible. In a workplace investigation the investigator is evaluating credibility on the lesser legal standard of the “Balance of Probabilities.” The Investigator asks themselves “would a reasonable person believe this interviewee?” Do they have direct knowledge of the events or is it second or third hand knowledge? Is there any type of relationship between the parties that the investigator needs to be aware of? Who provided the name of the witness? Did it come directly from the complainant or respondent? Did it come from a supervisor or another witness? Did the name come from a credible person? All of these things must be kept in mind when interviewing.

Indicators of Credibility

When looking at the credibility of a witness the investigator will look at multiple sources of evidence to establish credibility.

• Can one verify what the person is saying with other evidence? Can they back up their story? If someone says that they have “hundreds of offensive emails” can they really produce hundreds of offensive emails or is that an exaggeration? Can they produce any emails? An investigator should not be afraid to challenge interviewees to provide evidence of their claims.
• Are there inconsistencies in their own accounts? The investigator will need to dig into inconsistencies by asking more questions e.g. “Earlier you mentioned that you saw the incident, but now you are not clear who was involved. Please help me understand that.”
• Are there any earlier written accounts that do not match what a witness is now saying? Has the story changed from when they wrote a witness statement, complaint, incident report or had a conversation with a supervisor?
• An investigator should ask for a timeline of events and then ask about specific events out of the timeline to see if the story changes at all.

An investigator may be tempted to go with their “gut feeling” with regard to a witness’s credibility, however the more sources of evidence to back up testimony the stronger the case will be. If an investigator is doubtful of someone’s credibility, they should be mindful of the following points:

• Investigators should be curious. If something does not seem right the investigator should keep asking questions until they are satisfied that they have a clear picture of the person’s credibility.
• Any investigator must not be fooled by common “lie detection” beliefs e.g. if the person does not maintain eye contact they are lying, or if they fidget they are making up a story. People react differently to stressors. They may be nervous or there may be cultural differences that need to be taken into account.

 Criteria for Evaluating Evidence: Relevance, Admissibility, Privilege

Relevance: An investigator must ensure that evidence used is relevant to the investigation; that it either supports or refutes the allegations. They should consider evidence that pertains to the issue – it may not directly address the question if something happened or did not happen but may support a pattern or treatment of a person or group.

• Patterns of behaviour can make seemingly inconsequential information or actions relevant because they establish or refute a pattern of behaviour.
• Multiple examples of the same behaviour toward other people in the organization may establish a pattern that is relevant to the investigation. If the investigator looks at one event and thinks that is not important, they may change their mind when it is coupled with two, three or four events that are all the same. That one event now becomes part of a pattern that is relevant.
• If other witness experienced harassment and discrimination it does not automatically mean that the complainant also experienced this, but it demonstrates a pattern of behaviour. This is indirect evidence that will be taken into account on the balance of probabilities.
• Similar facts must actually be similar. If someone was accused of stealing a pen and accused of stealing $10,000 these are not really similar. They are both thefts, but the degree of theft is very different – many people have “stolen” a pen from their workplace …. but not many have stolen $10,000.
• “Character evidence” provided by a witness is an opinion about someone and may be tainted. Investigators should look for actions and behaviours not “traits” of the person. For example, a trait is that someone is “sneaky” or “sleezy” – this characterization not really helpful. The investigator should continue to probe the interviewee about what they mean by sneaky or sleezy; what does the person do that would lead the witness to believe this about the person.

Admissibility: Most workplace investigators are HR professionals and not lawyers, but one hopes that if a workplace issue was investigated and went to arbitration or before the court the evidence collected through the investigation would be considered admissible. Investigators make their findings based on evidence; and should strive for admissible evidence. Was the evidence collected in the appropriate manner? Can the investigation show a chain of possession of evidence, detailing who was in possession of the evidence and when? Original documentation should be used and where possible the investigator should ensure its authenticity. It is also important that facts, not opinions, are recorded. Unless a witness is a recognized expert their opinion means little. The investigator cannot rely on gossip, second-hand knowledge, hearsay or other secondary sources.^[1]

Privilege: When a lawyer provides advice to a client on a legal matter that information is privileged and may not be used in court. The investigator’s job is to investigate the matter at hand. If the investigator is a lawyer they will not be providing advice to the employer so will not be invoking privilege.

Investigators are normally paid by the employer and thus the investigation report at the end of the investigation, including the findings, is the property of the employer. Depending upon the policy in place the employer may not be obligated to share the investigation report. In a unionized workplace there may be an agreement between the union and employer to share any investigation report with the union.

Can I get sued for an investigation?

An HR employee acting as an investigator looking into a workplace incident may have the lingering question of “can I be sued for defamation if a report makes comments on someone’s credibility or character?” If the investigation was conducted and report written in good faith with no malice, then the investigator can rely upon the right of “Qualified Privilege”.

• Qualified Privilege is usually used in cases where the person communicating the statement has a duty or interest to make the statement. The person making the statement must show that he or she has made the statement in good faith, believing it to be true and that the statement was made without malice^[2].

What this means is that the investigation report was created without malice and therefor the creator may not be sued for defamation. An investigator does not need to be a lawyer to have the defense of qualified privilege. If an HR representative conducts the investigation and the respondent is upset with either the results of the investigation or feels that comments made defame their character, if the report was not created in malice, the HR representative cannot be sued. For example, if an investigator writes in the report that they do not find someone to be credible and state well-reasoned findings for this assessment, they cannot be sued.