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[Workplace Investigation: Examination in Chief or in Cross]

 

Does a Workplace Investigator Examine or Cross-Examine a Witness?

A workplace investigator interviews witnesses. The investigator does not conduct an examination-in-chief or a cross-examination in the courtroom sense.

Nevertheless, a properly conducted investigative interview borrows techniques from both. It should begin by allowing the witness to give a complete account in their own words. It should then move to focused and sometimes challenging questions designed to test the reliability of that account.

The distinction is important. An investigator who simply records what each witness says has not completed the investigative task. Conversely, an investigator who assumes the role of an adversarial cross-examiner risks losing the neutrality essential to a defensible investigation.

An Investigation Is Not a Trial

In Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181, the Supreme Court of Canada distinguished an investigation from an adjudicative hearing.

The purpose of an investigation is to gather information and determine what occurred. It is not a trial governed by the formal rules of evidence, examination-in-chief and cross-examination.

Although Irvine did not concern an ordinary private workplace investigation, the distinction is useful. The investigator is engaged in an inquisitorial process. The investigator must obtain the relevant evidence, test it and assess it—not prosecute or defend either party’s case.

The First Stage: Obtaining the Witness’s Account

An interview should ordinarily begin with open-ended, non-leading questions.

The witness should be invited to explain:

• what happened;
• when and where it happened;
• who was present;
• what was said or done;
• what occurred before and after the event;
• whether relevant documents or messages exist; and
• whether other persons may have relevant information.

Questions such as “Tell me what happened next” or “What did you understand that statement to mean?” allow the investigator to obtain the witness’s actual recollection without supplying the answer.

This stage resembles examination-in-chief, but there is an important difference. The investigator is not counsel presenting the witness’s evidence in support of a particular side. The investigator remains neutral and is responsible for identifying gaps in the account.

The Second Stage: Testing the Evidence

Once the witness has provided a narrative, the investigator should test it.

This may require focused questions concerning:

• inconsistencies within the witness’s account;
• inconsistencies with an earlier statement;
• conflicts with documentary evidence;
• conflicting accounts given by other witnesses;
• gaps or changes in the witness’s recollection;
• the inherent probability or improbability of the account;
• the witness’s opportunity to observe the event;
• possible interest, motive or bias; and
• evidence that may support an alternative explanation.

At this stage, some questions may properly be leading. A neutral investigator is not required to accept an implausible answer or avoid difficult questions.

The investigator may say:

You have said that no one else was present. The meeting invitation and two witnesses indicate that another employee attended. Can you explain that difference?

That is a legitimate investigative question. It confronts the witness with an apparent inconsistency and provides an opportunity to explain it. It does not become improper merely because it is pointed or uncomfortable.

Procedural Fairness and the Right to Respond

The requirements of procedural fairness depend on the nature of the process and the consequences for the affected person.

In Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), the Supreme Court explained that procedural fairness is flexible and contextual. The content of the duty depends on such matters as the nature of the decision, the process followed, the importance of the decision to the affected person and the legitimate expectations created by the governing procedure.

Baker concerned an administrative decision, not a private workplace investigation. It should therefore not be treated as imposing an identical public-law duty on every private employer. Its underlying fairness principles are nonetheless instructive, particularly where an investigation may result in discipline, dismissal, reputational injury or another serious consequence.

At a practical level, a fair workplace investigation will ordinarily require that the respondent receive:

• sufficiently particularized allegations;
• the material substance of the case to be answered;
• a meaningful opportunity to respond; and
• an opportunity to explain significant contradictions or credibility concerns.

Fairness does not invariably require the production of every witness statement or document. The respondent must, however, understand the essential case and have a genuine opportunity to answer it.

Material Contrary Evidence Must Be Put to the Witness

An investigator should not rely upon significant adverse evidence without giving the affected person an opportunity to address it.

This is particularly important when:

• another witness has directly contradicted the person’s account;
• a document appears inconsistent with the person’s evidence;
• the investigator is considering an adverse credibility inference;
• the investigator believes that an important part of the account is implausible; or
• previously undisclosed evidence may materially affect the finding.

The investigator need not disclose every collateral inconsistency. The obligation concerns evidence that could materially affect the finding.

The same principle applies to a complainant where evidence emerges that materially undermines the allegation. Procedural fairness is not reserved for respondents. Both parties should be given a reasonable opportunity to address material evidence affecting their respective accounts.

The Search Must Include Exculpatory Evidence

An investigator must explore evidence that may disprove an allegation as diligently as evidence that may establish it.

A workplace investigation is not a process for assembling evidence in support of a predetermined conclusion. The investigator must consider reasonable alternative explanations and pursue material evidence pointing in either direction.

In Elgert v. Home Hardware Stores Limited, 2011 ABCA 112, the Alberta Court of Appeal considered a seriously deficient investigation of sexual-harassment allegations. Among other problems, the person appointed to investigate was connected to the complainant’s father, and the investigation was neither objective nor even-handed.

The decision does not establish a prescribed sequence of interview questions. It does, however, demonstrate the risk created when an investigation lacks independence, balance and an objective examination of the evidence.

Similarly, Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, illustrates the consequences of an employer’s mishandling of a complaint. The employer rejected the employee’s complaint, required her to continue working with the manager whose conduct was in issue, and threatened her with discipline for making an allegedly unsubstantiated complaint. The decision demonstrates the danger of an investigation or complaint process that effectively turns against the person seeking protection.

Is There a Legal Duty to Conduct a Perfect Investigation?

Canadian law does not generally recognize a free-standing tort of negligent investigation against an employer.

In Correia v. Canac Kitchens, 2008 ONCA 506, the Ontario Court of Appeal declined to extend the tort of negligent investigation to a private employer conducting an internal investigation.

That does not make the quality of the investigation legally irrelevant. A deficient or biased investigation may affect:

• whether the employer can establish just cause;
• whether the employer acted honestly and in good faith;
• entitlement to aggravated or punitive damages;
• compliance with occupational health and safety legislation;
• human-rights liability;
• compliance with a collective agreement or workplace policy; and
• the reliability and defensibility of the investigator’s findings.

The law may not demand a perfect investigation. It does demand one capable of supporting a fair and rational employment decision.

The Proper Interviewing Model

The preferred model may be summarized in four stages.

1. Invite the narrative

Begin with open-ended questions and allow the witness to provide a complete account without unnecessary interruption.

2. Clarify the details

Identify dates, locations, participants, exact words, surrounding circumstances, documents and potential witnesses.

3. Test the account

Examine inconsistencies, documentary conflicts, competing accounts, probabilities, possible motives and reasonable alternative explanations.

4. Put material adverse evidence

Before completing the investigation, give the affected person a meaningful opportunity to answer significant contradictory evidence and credibility concerns.

The interviewer’s tone may remain respectful throughout. Respectful questioning does not mean uncritical questioning.

The Investigator Is Not an Advocate

The investigator may use techniques associated with cross-examination, but must not assume the role of opposing counsel.

The distinction lies principally in the investigator’s purpose.

An advocate attempts to advance a client’s case. A cross-examiner may seek to discredit a witness and establish propositions favourable to the opposing party. A workplace investigator asks difficult questions to determine what probably occurred.

Aggressive questioning may also impair the quality of the evidence. A witness who feels attacked may become defensive, confused or less forthcoming. The investigator’s objective is not to win an exchange but to obtain the most reliable evidence reasonably available.

Conclusion

A workplace investigator conducts neither a conventional examination-in-chief nor a conventional cross-examination.

The process is inquisitorial rather than adversarial. It should begin with open-ended questions that permit the witness to give a complete account. It should then proceed to focused and appropriately rigorous questions that test the evidence against documents, competing accounts, inconsistencies and inherent probabilities.

Material contrary evidence should be put to the affected person before findings are made. The investigator must also pursue exculpatory evidence and reasonable alternative explanations rather than merely collecting evidence supporting the allegation.

The essential principle is straightforward:

A workplace investigator should listen like an examiner, test like a cross-examiner and decide like a neutral fact-finder.

 

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