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Workplace investigation alert: The impact of an investigator’s notes, in a recent BC case

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Workplace investigations sometimes take more twists and turns than a Gillian Flynn novel.1 In the early stages of an investigation, it’s often impossible to say what information is going to be critical to the investigator’s decision-making process. What seemed at first like an innocuous, offhand comment from a complainant could end up cementing, or tarnishing, his credibility once the respondent and witnesses are interviewed.

So what’s an investigator to do, in the absence of a crystal ball? Document, document, document. Detailed notes of everything a party says are the best way to ensure you are prepared for any unexpected twist or turn that an investigation may take.

A recent case from the British Columbia Human Rights Tribunal provides an example of a complaint that took a turn no one saw coming, and one where the notes could have played a critical role.

The Case

In McIntosh v. City of Vancouver, Mr. McIntosh complained that he was discriminated against by his employer on the basis of his sex.

On July 11, 2015, Mr. McIntosh was working as the sub-foreman on a job site when a safety incident involving a gas line occurred. An Occupational Health and Safety Superintendent went to the site to investigate the incident. Mr. McIntosh alleged that, while at the site, the Superintendent grabbed his arm between his hand and his elbow and rubbed her hand up and down his arm. Mr. McIntosh said that he brought the touching to the attention of a human resources consultant and an acting manager at a meeting about the July 11th incident. However, his concerns were not investigated, and he was given a one-day suspension for making disrespectful and threatening comments about his direct supervisor and others on July 11th.

Mr. McIntosh’s employer brought an application to dismiss his complaint, arguing that, even if events occurred as Mr. McIntosh said they did, it was a single, isolated incident of physical touching.

To support its argument, the employer provided an affidavit from the human resources consultant. She said that when she met with Mr. McIntosh following the July 11th safety incident, he only briefly mentioned that the Superintendent touched his arm, and he raised a host of other concerns about his direct supervisor. She did not include anything about the touching in her notes from her meeting with Mr. McIntosh.

Ultimately, the Tribunal dismissed Mr. McIntosh’s complaint. There was no reasonable prospect that the complaint would succeed, given the minor, benign nature of the touching as described by Mr. McIntosh. In fact, the Tribunal found that Mr. McIntosh’s allegations clearly made no impact on the human resources consultant, since she had not even included it in her notes.

The lack of notes turned out to work in the employer’s favour in this case because it underscored the incident’s insignificance. However, it’s easy to imagine how the absence of notes could have instead caused serious problems.

No one expected Mr. McIntosh to complain about this touching. If the human resources consultant had no memory of what Mr. McIntosh said about the physical contact, the employer would not have been able to argue that the incident did not seem serious at the time it was disclosed.

Best Practices for Note Taking

Memory is fallible. It’s impossible for any of us to remember all the details from our interviews. Following these best practices for note taking will help you respond when the unexpected arises.

Consider your medium. Are you going to take notes on your laptop? By hand? Some people can capture more information by typing. Others prefer to handwrite, because they find that typing notes leaves them less engaged in the interview, creates a physical barrier between themselves and the interviewee and/or inhibits eye contact. There is no right or wrong answer here. What’s important is that you give some thought to how you are best able to capture complete and accurate information.

Remember the basics. Before getting into the substance of the interview, your notes should cover the basics: the date, time and location of the interview, the name of the interviewee and anyone else who is present for the interview, and the timing and length of any breaks. Also, be sure to record the questions you ask, not just the answers to your questions. It might seem obvious, but it’s easy to forget to record these details and then be left scrambling a month later to remember when exactly you interviewed the respondent, or whether her union rep was present for the interview.

The more detail, the better. As the McIntosh case demonstrates, you often don’t know what details from your interview are going to end up being important. So, err on the side of capturing everything. Dates, times, offhand remarks or jokes could all end up being relevant to your investigation. Try to notice when you stop writing or typing. You probably did so because you figure whatever the interviewee is saying is unimportant. If you can catch yourself doing this, you’ll be less likely to do it in the future, and more likely to re-engage in the interview and capture what the party is telling you.

More than words. Good notes cover more than just what the interviewee says. Your notes should include any non-verbal cues the interviewee displays. For example, you might make a note that the witness teared up when she described overhearing the respondent insult the complainant. Or the complainant raised his voice when he told you about the respondent’s behaviour. The human resources consultant in McIntosh might have noted that Mr. McIntosh was nonplussed when he described the arm touch but became far more animated when he disclosed other complaints about the workplace. While these types of non-verbal cues should be used with caution when assessing credibility, they can play a part in the overall decision-making process.

Remember follow-up. Rather than leaving an interview and trying to remember what steps you have to take to follow-up, include these steps in your interview notes. You could, for instance, highlight each time an interviewee mentions a document that you will need to obtain, or bold portions of a witness’ story that you will need to put to the respondent.

Keep the notes. Don’t shred your notes once you’ve drafted your report. Your notes are a contemporaneous record of your interviews and probably contain details that didn’t make it into the final report. If the matter that you investigated ends up in litigation, your notes could provide valuable evidence and are a record of the thoroughness of your investigation.

1 Author of the thriller Gone Girl.