When conducting interviews as a workplace investigator, I begin each interview by explaining my role in the investigation process to the interviewee. As an external investigator, I ensure that interviewees are aware that my role is to be neutral. In the past, I have been asked whether I could be truly neutral. I have had interviewees express to me their reservations about how I would be assessing the information they provide, for if a client retains our firm to investigate a complaint, would I not then just be serving the client’s interest? In this blog post, I answer these and other questions I have been asked in relation to an investigator’s neutrality.
Workplace investigators all do the same thing when they conduct an investigation: they tell participants to keep the investigation and its subject-matter confidential. This instruction helps protect participants’ privacy and maintain the integrity of their evidence. But what happens to this confidentiality requirement when the investigation is over? How does an employer respond when a participant in an investigation says that they want to tell their story, in their own words, to an audience beyond the painstakingly neutral and objective investigator?
In our digital era, investigators must be increasingly technologically savvy. Evidence can take on many forms, including texts, emails and social media accounts. Many employers provide company-issued phones, which, more often than not, happen to be iPhones that are controlled by Apple IDs and rely on virtual storage. As the workplace is further digitized, and as more offices become mobile or virtual, investigations will naturally be dealing with evidence that is stored virtually on a cloud. As the decision District of Houston v. Canadian Union of Public Employees, Local 2086 (“District of Houston”) illustrates, sometimes when evidence is stored virtually, it is not so easy to access.
I recently did several investigations which involved a bit of creativity when choosing the interview location. The situations made me think of how an interview space can affect a participant’s experience and perhaps the quality of evidence that is elicited during that meeting. Below, I offer some thoughts to consider when choosing an interview space.
The interview is an opportunity for the investigator to neutrally gather evidence. It is also an opportunity for the interviewee to talk about their understanding and observations of the situation at hand. The interview is often one of the key, if not the main, sources of information that an investigator will have.
C’est une question que l’on nous pose souvent pendant notre formation sur les techniques de base en matière d’enquêtes au travail. Devons-nous vraiment tout dévoiler avant l’entrevue avec la partie intimée? Certains participants pensent que la partie intimée fournira des informations plus spontanées et candides s’il y a un élément de surprise pendant l’entrevue. Si la partie intimée reçoit une information détaillée, elle aura ainsi plus de temps pour inventer une histoire qui se conforme aux allégations et aux éléments de preuve. Cette tactique, toutefois, se fond sur une supposition que l’intimé cache quelque chose et est donc « coupable » de ce dont il est accusé. Cette approche n’est pas impartiale et peut mener à une conclusion que la partie intimée a été privée de son droit à l’équité procédurale.
Recently, I was on an airplane returning to Toronto from Sudbury. Apart from what I’m about to tell you, the flight was unremarkable. Friendly flight attendants served a selection of drinks and snacks. The flight jostled us across the sky with its typical turbulence. I sipped some wine, lamented how few pretzels there are in one bag, and caught up on the news at the end of a long day.
My tired eyes rested on the screen of an open laptop just ahead of me. What I saw was the title page of a workplace investigation report, which listed the names of the parties and the employer.