Investigations and the New Normal:
Assessing Credibility and Reliability in Pandemic Investigations
At the beginning of the COVID-19 pandemic many employers wondered if they should just wait until it was over to pursue workplace investigations they knew were required. Respondents in these investigations and their legal counsel frequently argued that delay was the only way to ensure procedural fairness for their clients. This dilemma seems to have largely resolved by conducting interviews remotely using video conferencing and telephone, but lingering doubts remain for some. The following short analysis of the critical issues at play reveals that those concerns are largely unfounded in the context of a workplace harassment investigation.
Workplace investigations can be stressful for all involved. When they happen in the midst of a pandemic, the stress is inevitably amplified. It is crucial for investigators and employers to manage the general anxiety of parties in these conditions. For this reason, we offer a variety of options and alternative measures for conducting interviews.
Even prior to the COVID-19 pandemic restrictions, we conducted some interviews via telephone and videoconference. Now, these have increased and, where allowed by public health authorities, we offer in-person interviews with precautions like masks and social-distance protocols.
However, it is also imperative for employers and employees to know that, whatever form their workplace investigation takes, it is conducted fairly. The legal principles of procedural fairness are critical. Procedural fairness principles help ensure an investigation is “appropriate in the circumstances”[1] as required by the governing legislation (in Ontario, the Occupational Health and Safety Act).
Our post on Procedural Fairness in the Investigation Process gives more detail on key procedural fairness measures that are expected in the context of a workplace investigation.
No matter the format (online, in-person, telephone), there are consequences when an investigation isn’t promptly or properly conducted. Courts and tribunals consider how quickly the employer responds to a complaint when determining liability and calculating human rights damages. A pandemic is no excuse for sacrificing the rights of employees to a fair and timely investigation.
Virtual Interview Options – Phone and Videoconferencing
Recently, a Court dealing with the new challenges posed by COVID-19 rejected the objections of a litigant to delay proceedings due to concerns such as: not being physically present in a neutral setting; the difficulty of assessing a witness’s demeanour remotely; and risk of utilizing technology to abuse the process.[2]
It was decided that the challenges associated with using alternatives to in-person hearings do not outweigh the interest of advancing the matter before the Court. The Court candidly stated: “We no longer record evidence using quill and ink…We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.”[3] Similarly, a workplace investigation should not be delayed due to the unique challenges of our new normal. The Occupational Health and Safety Act requires that an employer take every safeguard reasonable in the circumstances for the protection of a worker.[4] The Act gives employers the ability to decide how complaints of workplace harassment will be investigated and develop a process for doing so but must ensure investigations of harassment allegations are “appropriate in the circumstances.”
Delay
The circumstances of a worldwide pandemic may reasonably justify some delay to account for organizing employees who may, at this time, be working remotely or not working. However, a timely investigation is another major procedural fairness requirement. The reason for delay must be proportionate to the length and impact of the delay.
Delaying an investigation can significantly impact the rights of employees. Claiming COVID-19 restrictions as the reason for a lengthy delay is unlikely to be successful in the case of workplace harassment complaints. Employers have suffered severe consequences for inaction or failing to investigate employee complaints.[5]
See John Curtis’ Post Duty to Investigate – A Ticking Time Bomb for an example of why, when a claim of harassment or misconduct is made, a workplace investigation cannot wait.
How Real Are the Risks of Virtual Interviews?
As for methods of investigation in a pandemic, we recognize that a video conference interview could be inappropriate or inaccessible to some parties. This fact may mean parties are more comfortable meeting in person while wearing masks or speaking over the phone. This ultimately raises the question of whether an investigation is lacking when investigators cannot observe someone’s conduct or facial expressions during interviews.
Do telephone interviews and interviews in which the investigator cannot see a complainant or respondent’s face or mannerisms impact the fairness? The concept of “demeanour evidence” and “the demeanour package” has always been a common way of assessing credibility. This refers to observing the face, body language, voice, mannerisms, etc. of witnesses.
However, even the Supreme Court of Canada acknowledged that being able to see the face of a witness is not the only or the most important factor in accurate credibility assessment.[6] They acknowledged that courts have “many examples of accepting evidence from witnesses who are unable to testify under ideal circumstances because of visual, oral, or aural impediments.”[7] Investigators also have a large toolbox to make credibility assessments even if we don’t see someone in person.
In the case of telephone or masked interviews, we can still assess things like voice, tone, and conversation style. However, evidence over the years has proven that many of the things we used to believe we could read as evidence of truth or deception should not hold much weight. We know that non-verbal demeanour or conduct during an interview can be the result of cultural differences, anxiety, fear, or personality differences that investigators may make the mistake of misreading.
Instead of relying on the traditional “demeanour package” to make credibility assessments of people, we look to directness of answers, consistency of story, narratives that hold together, reference to time and events that can be corroborated, clear motivation or lack of motivation to lie, and, as always, documents and other witnesses. All these things can still be easily accessed in pandemic investigations.
When conducting workplace investigations in the time of COVID, we are dealing with the right to a fair investigation and the right to participate safely. We do not need to choose between one or the other. There may even be advantages to telephone or Zoom interviews. For example, interviewees who experienced trauma can often have gaps in memory but sometimes being in a comfortable setting, like in their home on the telephone, can help minimize the stress of an interview and allow the witness to tell their story more coherently.
Workplace investigations have not been put on hold nor has the evidence provided been compromised by COVID-19 measures. See John Curtis’ Post: Workplace Investigations During a Pandemic: 3 Things We Have Learned to learn more about what investigators have been doing to address and accommodate new investigation challenges in a pandemic.
[1] Occupational Health and Safety Act, S 32.0.7 [OHSA].
[2] Arconti v. Smith, 2020 ONSC 2782 at para 18 [Arconti].
[5] See, Boucher v. Walmart, 2014 ONCA 419 and Bassanese v. German Canadian News Company et al., 2019 ONSC 1343
Larissa Donovan is an Articling Student with John Curtis Law. She is currently completing her JD at Thompson Rivers University in Kamloops, BC. At Thompson Rivers, she is the club lead of the Women in Law Society, and also the management and logistics co-lead for Law Needs Feminism Because.
