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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.
1. What does it mean to be neutral?
An investigator has duties of neutrality and fairness¹ when conducting an investigation. An investigator maintains neutrality in an investigation when they approach the matter with an open mind and have not made any pre-determinations regarding the complaint.²
My colleague, Janice Rubin, discusses how the role of a workplace investigator is fundamentally different than an advocate here. She notes that a workplace investigator’s role is not to advocate the position of the parties or to promote the client’s interest. The investigator’s role is a neutral one and they have been retained to assess the information gathered during the course of the investigation in an objective manner.
Neutrality can exist even before an investigation starts. In choosing who to investigate the complaint, organizations should ensure that the investigator can be neutral bearing in mind the subject matter of the complaint and the parties involved.
2. Why did the investigator not acknowledge how hard it was for me to share the information that I did?
In my time as an investigator, I have sat across from individuals who have shared highly personal information related to the investigation that has clearly been stressful and/or difficult for them to share. As a workplace investigator who is committed to maintaining neutrality throughout the process, I understand that I must be aware of when and how I convey emotions or opinions to an interviewee. This understanding may not be apparent to the interviewee who may be left with the impression that I am unfeeling or that I lack empathy.
Workplace investigators avoid the use of statements like, “I can see how difficult that would have been” or “I understand why you would have felt that way” because to do so may leave the party with the impression that the investigator is siding with them. These non-neutral statements may also lead to the appearance of the investigator being biased during the investigation. Rather than make statements like the examples given, I take a longer pause between questions to give the interviewee some time and ask the interviewee if they need a break before continuing on with the interview. This is my way of balancing my duty to be neutral with a recognition that the interviewee has just provided me with information that was not easy for them to share.
3. What kind of conduct has been considered non-neutral?
There have been a number of cases that have examined whether an investigation was flawed due to the investigator’s failure to remain neutral. The legal test for neutrality is whether the investigator approached the case with a closed mind.³ The burden of proof in finding that the test has been met is a high one and requires actual evidence and not just a mere suspicion4. Examples of conduct by investigators which lacked neutrality during an investigation include:
- The investigator failing to keep notes of the complainant’s interview where the substance of the complaint was discussed yet having notes from interviews of the respondent’s employees5;
- The investigator’s report failing to reference highly relevant issues that would have been harmful to the respondent’s response6; and
- The investigator’s attitude towards a respondent, (i.e. describing him as “loveable”, “wonderful” and “liked by everyone” in her testimony to the court), leading her to readily accept his account regarding an allegation that he made a racial slur, rather than conducting a thorough analysis or probing into the complainant’s concerns.7
4. Can an investigator be truly neutral?
My answer is: Yes. As discussed above, a workplace investigator is expected to uphold the duty of neutrality in an investigation. Speaking from my own experience, I sincerely do not have a vested interest in the outcome of an investigation. I approach each investigation with a willingness to listen to each of the parties and do not make findings before I have obtained all the information that I believe is relevant and necessary to complete the investigation.
To ensure neutrality in the process, workplace investigators can and should employ a number of strategies throughout the stages of an investigation including:
- Explaining to interviewees at the outset of the interview that your role is to be neutral and what this means.
- Keeping an open mind by listening to and considering the position of each of the parties during interviews and when reviewing other types of evidence or determining which witnesses will be needed to be spoken to.
- Being mindful of neutrality in the different types of investigations you may be asked to do. My colleague, Michelle Bird, recently wrote about remaining neutral while conducting sexual harassment and sexual violence investigations here.
- Using neutral language throughout interviews to avoid any appearance of bias.
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1 Davidson v. Canada (Attorney General), 2019 FC 997 at para. 42 citing Miller v Canada (Human Rights Commission) (1996), 112 FTR 19 at para. 11 and Slattery v Canada (Human Rights Commission), 73 FTR 161 at para. 50.
2 See Georgoulas v. Canada (Attorney General), 2018 FC 863 at para. 100 citing Abi-Mansour v. Canada (Revenue Agency), 2014 FC 883 at para. 51.
3 Southern Chiefs Organization Inc. v. Dumas, 2016 FC 837 at para. 31 citing Gosal v. Canada (Attorney General), 2011 FC 570 at para. 51.
4 Southern Chiefs Organization Inc. v. Dumas, 2016 FC 837 at para. 31 citing Abi-Mansour v. Canada (Revenue Agency), 2015 FC 883 at para. 51.
5 Banda v. Canada (Attorney General), 2019 FC 291 at para. 92.
6 Hughes v. Canada (Attorney General) 2010 FC 963 at para. 60.
7 Faghihi v. 2204159 Ontario Inc. c.o.b. The Black Swan, 2016 HRTO 1109 at paras. 77-79. For further commentary on this case, please see my colleague Cory Boyd’s blog here.