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Fine line between deception & honesty – Understanding a reluctant party

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Workplace Investigation Fundamentals
18 Jun - 20 Jun at
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If a complaint of workplace harassment is made, do you know how to respond, investigate, and report on it — legally and correctly? If you don’t, you are not alone. This 3-day course is a crucial primer for today’s climate. Investigate mock complaints (inspired by our work across the country) from start to finish, build your investigation skills, and learn how to avoid costly pitfalls. The third day focuses on mastering report writing.
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In my previous life, before becoming an investigator, I lived in the world of private legal practice, both in the Caribbean and in Ontario, Canada. In that role, I had the opportunity of interacting with persons of diverse social, cultural and racial backgrounds, persons of varying personality types and persons with experiences that had shaped their life or the way they interacted with others. There were many occasions where the persons with whom I interacted, whether as their advocate or as opposing counsel, were seemingly not forthcoming with the information that I needed to illicit. The typical or traditional thinking is that they are not forthcoming because they are either lying or have something to hide. In other words, honest people are open and ready to share information while hesitance and a seeming lack of cooperation is a sign of deception. In my experience, that is not always the case. I realized very early that people are reluctant or are not forthcoming for different reasons. Yes, at times that reason is indeed deception, but that was not always so. Sometimes, there was a legitimate reason for their seeming lack of cooperation. In order to obtain the information that I needed to provide adequate representation, I had to avoid assumptions and take the time to understand why they were not cooperating and adjust my approach accordingly. Making such an adjustment requires an open mind, sensitivity and a willingness to put away any unconscious biases.

As an investigator, I have found the same to hold true in workplace investigations. We investigate very sensitive matters including sexual harassment, sexual violence, disrespect and bullying. Very often we experience parties, both complainant and/or respondent, as being reluctant or unwilling to share relevant information. In the case of a complainant, some may conclude that they are lying about the complaint, and in the case of a respondent, some may conclude that he/she is guilty and trying to deny it. I can say quite categorically, that it is unwise to make such assumptions without more. It is imperative that an investigator takes the time to understand why a party may be reluctant to share relevant information or be uncooperative. Understanding the “why” will inform how the investigator navigates the investigation, including the assessment of credibility. Here are some reasons to consider as to why a party may be uncooperative.

1. Trauma – A person who has been the victim of trauma, whether sexual or otherwise, may experience significant difficulty in sharing or rehashing their traumatic experience. You must understand that, in an investigation, they are being asked to share the most personal and vulnerable part of their lives with someone who, very often, they do not know or do not know very well. This is a tall ask and investigators must be sensitive to this fact. An investigator must take the time to gain their trust, be patient as the interviewee works through their own feelings, and be willing to adjust the process. If that is done, it increases the chances that the necessary information will be obtained.

2. Fear of Stigma or Isolation – Depending on the subject matter of the investigation, both a complainant and a respondent may fear how they will be perceived by others. This is the potential for reputational harm. To some, this may pale in comparison to the primary issue of resolving what has been alleged. However, this can be a very real issue for the parties. Beyond the investigation, they still have to exist and function in the workplace. This can easily impact the way in which they share their information and whether they do so at all.

3. Just Plain Fear – In many cases, neither the complainant nor the respondent have ever gone through an investigation process. They do not know what to expect, they do not know the outcome and they have no idea how it will impact them in the end. In the case of a respondent, they have no idea if and how their entire life will be impacted, and they know that everything they say will be considered in deciding their fate. Therefore, they often think that the less they say, the better. This shows that parties are sometimes hesitant to speak or reluctant, not because they are being deceptive, but because they just do not know what else to do. An investigator needs to recognize the fear and provide reassurance to the parties of his/her role.

4. Cultural Dynamics – Human beings are influenced by the cultural dynamics to which they have been exposed. The parties in an investigation are no different. By virtue of their culture, some persons are less expressive or are not accustomed to speaking openly. There are a myriad of other ways in which one’s culture may impact the manner of communication. This may come across to the average person as uncooperative, when in fact that is not the case. The interviewee is in no way being dishonest; they are simply not forthcoming. Investigators therefore need to demonstrate a measure of cultural and emotional competence to recognize when this is at play so as not to make an adverse finding on that basis, especially as it relates to a credibility assessment.

5. Personality Traits – Some persons by their very nature are just unexpressive and uncomfortable sharing personal details. This can come across in the way that they give evidence. It does not mean that they are being evasive or dishonest; it may simply be their method of communication.

There is a fine line between deception and honesty and investigators must be able to identify that dividing line. The world of investigations is anything but black and white – it is mostly grey – and investigators must ensure that they are not influenced by societal norms and stereotypes. Remember, just because someone is not sharing freely and openly, it is does not mean that they are being deceptive. Be patient enough to find out why before arriving at a conclusion. Investigators need to be flexible and creative in order to navigate the issues presented by a seemingly reluctant party in order to elicit the necessary evidence. There is no one way of doing so. Each situation must be assessed, and the appropriate approach determined accordingly.

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