While you’re here, you may wish to attend one of our upcoming workshops:
Interviewing and Dealing with Difficult Witnesses
While you’re here, you may wish to attend one of our upcoming workshops:
Interviewing and Dealing with Difficult Witnesses
Interviewing witnesses can be the toughest part of an investigation, and sometimes our whole case hangs on the information that we may obtain from them. In this workshop, we help to shed light on the challenges we face when interviewing witnesses and provide strategies for dealing with them.
Conducting an investigation that is thorough, fair, confidential, and timely is, to speak plainly, complicated work. Investigators must make many difficult judgement calls during the process, including which witnesses to interview, which records, texts, and emails to review, and how to weigh the various types of evidence when making findings of fact.
To make these judgement calls appropriately, an investigator must have a broad bank of knowledge about procedural fairness, appropriate interview techniques, and how to collect and weigh evidence. Depending on the allegations, special expertise may be required, such as in interviewing child witnesses. Investigators must also vigilantly guard against their own bias(es) because failure to remain neutral throughout the investigation process can impact the investigator’s decisions as to which evidence to collect, how the evidence should be weighed, the credibility assessments made, and/or may lead them to misrepresent the outcome of the investigation to the relevant managers or other decision-makers.
Were the flaws in the investigation discussed in the recent labour arbitration decision BC Public School Employers Association/ A Certain School District v. BC Teachers’ Federation/ A Certain Teachers’ Association, 2022 CanLII 60950 (BC LA) caused by lack of expertise, bias, or some combination of the two? Read on to learn about this case and to see if you agree with my assessment. Along the way, we will also learn much about mistakes to avoid when conducting a workplace investigation.
Facts of the case
The grievor in BC Public School was a middle school teacher. In 2019, a student (Student J) showed another teacher some texts she received from a friend in grade 8, Student A. In the texts, Student A indicated that she and the grievor were in a sexual relationship.
The school notified the police, who, noting that the grievor lived with his two young children, notified provincial child protection services. For a number of months, the grievor was removed from his home and was restricted in seeing his children.
Student A attended several interviews with a police detective. At first, Student A said the texts were an ongoing joke between her and Student J. In her second and third interviews, she alleged some instances of sexualized behaviour by the grievor, but still maintained – for over seven hours of questioning – that the sexual assaults described in the texts had not happened.
The detective told the school district’s head of human resources (Administrator Y) that Student A claimed the texts were a joke, but that they (the detective) believed Student A was lying to protect the grievor. Administrator Y also heard from the detective that Student A told her parents that she and the grievor had twice had intercourse.
The school district commenced an investigation and selected Administrator Y and the school district’s Associate Superintendent to be the investigators.
The investigators interviewed Student A, Student A’s parents, the student who reported the texts (Student J), and two teachers. The grievor declined to be interviewed because of the ongoing police investigation.
In both of her two interviews with the investigators, Student A said that the grievor kissed her and had intercourse with her in his classroom during lunch break. Student A said she had lied to the police to protect the grievor.
The investigators concluded the allegations were true and notified the grievor of their findings. The grievor denied the allegations, asserted that his classroom always had multiple students in it during the lunch break, and provided a list of potential witnesses. The investigators did not take any steps to verify the grievor’s assertion and ignored his list of witnesses.
The investigators drafted a four-page letter summarizing the evidence and findings and provided the same to the school board, with a recommendation that the grievor be dismissed. The letter stated that Student A provided “credible and detailed accounts” of the alleged assaults; the investigators did not disclose to the board that Student A had originally given the police a different version of events. The letter stated that the investigators drew an adverse inference against the grievor for his refusal to be interviewed. The letter also contained the sentence, “Interviews with witnesses validated important aspects of [Student A’s] account, notably that she and [Student J] texted about the progressing relationship, including the sexual intercourse, in real time.”
The investigators presented their findings to the board at a meeting. When the board asked about the letter’s reference to “real time,” Administrator Y said that the students recalled exchanging texts a week or so after events occurred. The investigators did not tell the board they had never seen the text messages (they relied on a summary provided to them by the detective).
When the board asked about the standard of proof, Administrator Y said Student A’s account was “validated” by a teacher who recalled girls having a conversation in the hallway about an inappropriate relationship. Administrator Y also referenced Student J’s consistent disclosures to the investigators, Students J and A speaking in consistent terms in the texts, and Student J exposing the allegations while Student A protected the grievor, all of which the investigators viewed as reasons to believe the texts accurately described what took place.
Based on the letter and the verbal information provided by Administrator Y, the board dismissed the grievor. The police investigation concluded several months later; no charges were laid.
Decision: no evidence the assaults occurred. Order: reinstatement with back pay
The arbitrator was very critical of the investigation, finding that it had not been thorough and that nearly all the evidence had been misconstrued or weighed inappropriately.
First, the arbitrator found that the investigators didn’t collect or review several pieces of key evidence. They took no steps to ascertain whether there were always multiple students in the grievor’s classroom during lunch, failed to review school attendance records to verify whether the grievor was at school on the days on which assaults were alleged to have occurred, and failed to obtain copies of the text messages between Students A and J.
Second, the arbitrator found that the investigators made a series of mistakes in weighing the evidence and making findings of fact. In essence, the investigators based their findings on Student A’s two interviews with them, Student J’s belief that the texts described true events, and a teacher overhearing a rumour that the grievor and Student A had kissed. The arbitrator pointed out that none of this evidence actually supported or corroborated Student A’s allegations; Student A’s inconsistent story was not credible, even considering the impact that her age (14) and the type of allegations could be expected to have on her recall and ability to give evidence; Student J was unable to provide any evidence outside the texts to corroborate her belief that they were true; and rumours, without more, are not credible or reliable evidence.
The arbitrator found that the grievor’s refusal to participate in the investigation was reasonable given the ongoing police investigation, such that it was a mistake for the investigators to have drawn an adverse inference. The arbitrator held that, “[t]he adverse inference sought by the Employer is particularly unreasonable in the circumstances because the District both ignored and failed to seek out readily available exculpatory evidence during its investigation.”1
The arbitrator found that, when collected and weighed properly, there was no evidence that the alleged assaults had taken place. Rather, the evidence indicated that Student A had been inappropriately badgered and pressured by the detective over repeated interviews until Student A changed her story to the one the detective believed. The texts had evolved from a fantasy joke between Students A and J to a point at which Student A suspected Student J believed them; thereafter, Student A felt compelled to continue the charade out of fear that Student J would end the friendship if Student A admitted the ongoing deceit. Further, the grievor had no opportunity to commit the alleged assaults: his classroom was typically “jam-packed” with students during lunch, with other teachers regularly walking in unannounced, and the grievor was not at the school on several dates on which assaults were alleged to have occurred.
Having found the allegations to be untrue, the arbitrator allowed the grievance and ordered reinstatement with three years of back pay – likely cold comfort for a teacher who had lost his 19-year career and had to live apart from his family for a time while he waited to be exonerated from allegations that he had sexually assaulted a child.
Decision: investigators misrepresented the evidence to the board. Order: aggravated damages
One interesting aspect of the BC Public School case is that the investigators were found to have been biased, not only in how they conducted the investigation, but also in how they reported the results to the school board. The arbitrator held that the investigators intentionally misled the board so that the board would agree with their view that the grievor should be dismissed.
The arbitrator concluded that the inadequate investigation and misleading report to the board could have reasonably been avoided, and that the investigators’ mistakes led to the grievor’s improper dismissal and significant mental distress. Because of this, the arbitrator awarded the grievor $20,000 as aggravated damages – a rare type of award in workplace investigation cases.
So, do you think the flaws in the BC Public School investigation result from lack of expertise, bias, or both? I suspect a combination of both. The investigators would quite naturally be sensitive to and vigilant about protecting students from sexual assault, and early on, a police detective told Administrator Y that they (the detective) believed the allegations were true. Both of these have the potential to lead an investigator to pre-judge the matter. In addition, the way the investigators weighed the evidence and described it to the board leads us to suspect that they lacked sufficient expertise to carry out such a sensitive investigation.
Regardless of whether the root of the flaws lay in bias, skill, or both, there is a lot for investigators to unpack in the 93-page BC Public School decision. The following are several takeaways that stand out to me as being particularly relevant to investigators who, like Administrator Y, are employed by the organization in which the investigation is being conducted:
- At the outset of each investigation, serious consideration should be given to whether an external investigator should be retained. Proper investigation of allegations that are sensitive or traumatic, or that involve vulnerable parties such as children, requires specific expertise. One wonders how the school district in BC Public School did not recognize that they needed an investigator with expertise in sexual assault investigation techniques, trauma-informed interviewing, and working with child witnesses.
- As compared to third-party investigators, internal investigators face some unique challenges to their neutrality and the keeping of an “open mind” during an investigation. For example, an internal investigator may:
- Have pre-existing background knowledge of the respondent’s performance issues, which may make the investigator more likely to believe that the respondent committed the alleged misconduct.
- Speak with people that a third-party investigator would not find themselves communicating with, such as the detective in the BC Public School case, or a colleague who shares a rumour when they pass their colleague/the investigator in the workplace.
- Have adopted their employer’s particular heightened concerns or vigilances – for example, I expect it would be very difficult for someone in Administrator Y’s role, working in the public school system and trained to watch for signs of child abuse or neglect, to be able to maintain neutrality in the face of allegations of sexual assault of a student.Internal investigators must take care to guard against these threats to their neutrality, and recognize when, in a particular investigation, they can’t (in which case, refer to the first takeaway, above!).
- BC Public School highlights an aspect of internal investigation work that is not often mentioned: the challenge and importance of communicating the evidence and findings to managers in a neutral, balanced, and accurate way. This can be especially difficult for an internal investigator to do when they are asked to report the results in-person to their own manager or the organization’s senior executives, who may be obvious in their belief as to the “correct” or desired outcome. I suggest that investigators who find themselves in this situation prepare by rereading their mandate and investigation report, reflecting on their own potential biases, reminding themselves to limit their comments to the contents of the report whenever possible, and recalling that it is better to take an unexpected question away for careful consideration rather than answer hastily.
- And finally, not to sound glib, but weighing evidence is hard to get right! And getting it wrong can have serious consequences: the mistakes made in BC Public School led to a child (who had already been improperly manipulated by improper questioning techniques by the police) being subjected to uncomfortable cross-examination at arbitration, significant hardship for a teacher, and a large damages award against the employer. Careful analysis, informed by experience, reviewing helpful cases like BC Public School, or blog posts like this recent one by my colleague, which discusses how to weigh evidence in single-party investigations, and regular professional development training, such as our Basic Workplace Investigation Techniques and Assessing Credibility workshops, is fundamental to an investigator’s success.
Interested in learning more about how to remain neutral during investigations? Click here to read actionable tips on avoiding bias, and here to read about staying neutral during sexual harassment and sexual violence investigations.
1 BC Public School at page 52.
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