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Representative or witness? Be certain before you proceed

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As workplace investigators, we regularly conduct interviews where the interviewee is accompanied by a representative from their union or association. Many collective agreements have provisions that allow employees to have their representative present during any interviews that are conducted as part of a workplace investigation, regardless of whether the employee participates as a party to the investigation or as a witness. Some collective agreements permit representation at any meeting that may lead to discipline.

The “ground rules” for representatives who attend investigation interviews are the same as the “ground rules” for legal counsel who attend investigation interviews with their clients. As part of these rules: the interviewee must provide the evidence, in their own words; the representative must not interrupt the interviewee or the investigator, or otherwise disrupt the process; and the representative should not attempt to make submissions on behalf of the interviewee. The representative’s role during an investigation interview is very different from their role at a grievance meeting or an arbitration.

While the “ground rules” are the same for representatives and legal counsel, there are important differences that investigators should consider before proceeding with interviews attended by a representative.

Confidentiality

When legal counsel attends an investigation interview, they have a professional obligation to maintain solicitor/client confidentiality. There is no corresponding professional obligation for union or association representatives. This means that at the outset of the interview, the investigator should make clear to the representative that the same expectation that exists for the interviewee to maintain confidentiality during the investigation process extends equally to them as the representative.

With a representative, there also exists the potential that the same individual will be asked to attend interviews with more than one interviewee during the investigation process. Although it is recommended that each interviewee have a separate representative (this is particularly important if both the complainant and the respondent are a part of the same union or association), this may not be practical or possible in some circumstances. This is most likely to occur where there are several parties and witnesses involved in the investigation, or where the size or structure of the union or association makes separate representation for each party or witness impossible. In investigations where the same representative will be representing more than one interviewee, the investigator should emphasize to the representative the importance of ensuring that they do not disclose confidential information from previous interviews.

Representative or witness?

Representatives will sometimes be a professional who is an employee of the union or association, but they might also be an employee of the organization conducting the workplace investigation and attend an investigation interview in their capacity as a steward. They might also be a former employee who has accepted a role with the union or association. Investigators must therefore consider whether there is any possibility that the representative might also be a witness in the investigation. If it is a possibility, then that individual should not represent anyone in the process as this would put them in a potential conflict of interest and could also result in the representative becoming aware of confidential information that they are not entitled to know about as a witness.

We recommend that investigators take steps early in the investigation process to ensure that confidentiality is maintained, and to reduce the possibility that a representative who is also a potential witness inadvertently attends interviews.

Recommendations

When an investigator knows that they will be conducting an interview that may be attended by a union or association representative, we recommend the following:

  1. The introductory letters sent from the investigator to the parties and any witnesses should request that the interviewee:
    • Provides the investigator, in advance of the interview, with the name of the representative who will attend the interview, if any. This allows the investigator to consider early in the process, whether the representative might be a witness. It might also avoid the delay that will almost certainly occur if this issue is uncovered at the outset of the interview, and the interviewee is required to locate and schedule an alternate representative. A request by the investigator that the interviewee find an alternate representative at this point in the process might also have a negative impact on rapport building, which is an important element of the investigation process.
    • Consider, before providing the name of their representative, whether this individual might be a witness in the investigation. At this point in the investigation, the investigator might not have enough information to be able to identify potential witnesses, but the interviewee might.
  2. At the outset of the interview, the investigator should ask whether the representative has any reason to think that they might have relevant information about the investigation, outside of their role as a representative for the interviewee.
  3. The investigator should remind the representative that the same expectation that exists for the interviewee to maintain confidentiality during the investigation process extends equally to them as the representative. In investigations where the same representative is attending more than one interview, the investigator should emphasize to the representative the importance of ensuring that they do not disclose confidential information from previous interviews.

For an interesting discussion on the topic of witnesses, I invite you to read my colleague Sophie Martel’s blog, dated August 25, 2020.


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