One of the frequent questions we are asked when conducting our workplace investigation training is, “When faced with conflicting evidence at the end of a workplace investigation, how can we make decisions about the relative credibility of the parties and witnesses?” Even more challenging can be articulating the reasons why you believe the evidence of one individual over that of another. Looking at how other decision makers describe their conclusions can provide human resources employees and other internal investigators with valuable insight.  For example, a recent decision of the British Columbia Human Rights Tribunal provides several examples of how credibility factors can be considered in the face of conflicting evidence.

In Boshoff v. Inspired Retreats (2014 BCHRT 6), an employee was fired three weeks after advising her employer that she was pregnant and one day after returning from what she alleged was a pregnancy-related leave. She claimed that her pregnancy was a factor in the decision to terminate her employment, while her employer denied that her pregnancy was a factor and said that Ms. Boshoff was let go due to interpersonal issues. Ultimately, Ms. Boshoff’s complaint was dismissed because the evidence did not give rise to a reasonable inference that Ms. Boshoff’s pregnancy was a factor in the decision to terminate her employment, in part due to issues with Ms. Boshoff’s credibility.

In her decision, Tribunal Member Diana Juricevic reviewed the factors to be considered in assessing the credibility of a party:

• Ability and opportunity to observe events;
• Power of recollection;
• Appearance and manner while testifying;
• Whether testimony seems unreasonable, impossible, or unlikely;
• Any inconsistencies in testimony during direct and cross-examination;
• Whether testimony harmonizes with independent evidence;
• Whether a witness has a motive to lie;
• Ability to “resist the influence of interest” to modify recollection;
• Any bias or prejudice the witness may have;
• How the evidence fits into the general picture revealed on a consideration of the whole of the case; and
• Whether evidence was in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”

She also reviewed the methodology outlined in the British Columbia Supreme Court decision in Bradshaw v. Stenner [2010] BCSC 1398:

[…] a methodology to adopt is to first consider the testimony of a witness on a ‘stand alone’ basis, followed by an analysis of whether the witness’ story is inherently believable. Then, if the witness testimony has survived relatively intact, the testimony should be evaluated based upon the consistency with other witnesses and with documentary evidence. The testimony of non-party, disinterested witnesses may provide a reliable yardstick for comparison. Finally, the court should determine which version of events is the most consistent with the “preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions” (para. 187).

Lastly, she noted:

The most helpful evidence in this case is the documents created at the time of events. These provide the most accurate reflection of what occurred, rather than witnesses’ memories that have deteriorated through the passage of time, hardened through this proceeding, or been reconstructed. I have used contemporaneous internal emails…as a reliable yardstick against which to compare and assess the reliability of the witnesses’ testimony [para. 8].

Throughout the decision, Tribunal Member Juricevic applied these factors in a clear and persuasive manner, noting when Ms. Boshoff’s description of an interaction was inconsistent with the contemporaneous email of another party or when her own evidence lacked internal consistency. After Ms. Boshoff initially denied but later acknowledged that she was given a task, the decision notes:

Ms. Boshoff was not responsive in her answers to some questions. Ms. Boshoff argues that her difficulty in providing responsive answers was because of nervousness. However, in my view, Ms. Boshoff was not candid in her testimony when an answer would not necessarily assist her case. She clearly had command of the situation, and shifted her answers as the questions developed. In reaching this conclusion, I have taken into account that Ms. Boshoff was cross-examined by her former employer.

Other factors noted in the decision as detrimental to Ms. Boshoff’s credibility were her downplaying before the Tribunal of the amount of a requested raise and “her tendency to exaggerate the reactions of her employer while, at the same time, downplaying her own behaviour.” Ms. Boshoff’s employer was conversely noted to have been more forthright and more credible because she “acknowledged reacting emotionally during arguments with Ms. Boshoff” and “provided details that could be adverse to her (own) case.”

Later in the decision, in reviewing the evidence relating to a disputed phone call, Tribunal Member Juricevic wrote:

I do not find Ms. Boshoff’s account credible or in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”. Once again, Ms. Boshoff exaggerated the reactions of Ms. Riddle and downplayed her own reactions….Ms. Boshoff’s testimony also does not harmonize with emails between her and Mr. Hansen sent shortly after the call. In my view, it is unlikely and improbable that Ms. Boshoff could recall verbatim what was said during one part of the phone call, when she could not even remember such basic details as the sequence of phone calls. Given her propensity to modify her recollection when it suited her, I do not accept Ms. Boshoff’s account of this phone call.

Unlike Ms. Boshoff, Ms. Riddle acknowledged the limits of her memory even when it was not in her interest to do so…Ms. Riddle acknowledges feeling emotional during her phone call with Ms. Boshoff. She described her reaction as “tense”, “upset”, “resentful”, “confused”, “stern” and “professional”. Ms. Riddle denied saying the words attributed to her by Ms. Boshoff, or any words to that effect…

I accept Ms. Riddle’s account of this phone conversation. In addition to the aforementioned reasons, Ms. Riddle’s account of this phone call harmonizes with contemporaneous email correspondence, and fits into the general picture revealed on a consideration of the whole of the evidence….

While all credibility assessments need to be done on a case-by-case basis, and the reasons for any credibility decisions must accurately reflect the reasoning of the investigator, reviewing decisions such as these can provide a workplace investigator with a clearer picture of how credibility factors should be applied and an understanding of how credibility decisions can be described.

Cory Boyd