The decision in Bakery, Confectionery, Tobacco & Grain Millers International Union, Local 410 v. Canada Bread Company Limited, 2015 CanLII 20939 (NL LA) was interesting not only for its outcome, but equally for the description of the workplace investigation conducted into the horseplay/violence incident giving rise to the grievance arbitration.

This incident occurred on April 24, 2014. The company commenced an investigation on April 27, 2014. The HR Advisor who led the investigation conducted the interviews of the parties involved and the witnesses via telephone. The HR Advisor worked from offices located in Moncton, New Brunswick and the plant was located in St. John’s, Newfoundland. The decision did not mention any extenuating circumstances that would have necessitated the interviews being conducted by telephone rather than in person.

At the hearing, when reviewing the notes taken during the telephone interviews, the HR Advisor testified that she was aware that her notes did not accurately reflect a statement made by one of the parties at the time of the interview nor at the hearing. She confirmed that the party’s evidence at the hearing was consistent with the statement that he provided on the telephone and that her notes were in error on that point. The HR Advisor’s evidence was that although she knew that her notes were in error, she did not believe that it was right to change the notes to accurately reflect the party’s statement.

In ultimately substituting a period of suspension for the original discipline of termination, the Arbitrator commented that it appeared that the employer believed that one party was the clear aggressor and one party was the reluctant participant. It appeared that, based on that conclusion, the employer terminated one employee while issuing a caution letter to the other reminding him that horseplay was not acceptable in the workplace. The Arbitrator, however, did not arrive at the same conclusion respecting the horseplay incident and found that both employees participated initially until the incident concluded with one employee on the floor and both being separated by co-workers. One of the primary reasons for the Arbitrator’s conclusion was that there was a great deal of inconsistency in the evidence of the parties and the investigator’s notes did not accurately reflect one party’s statement.

What could the investigator have done differently?

In-person interviews, properly conducted, after the respondent(s) has been provided with the statement of particulars and is in a position to fulsomely respond to the allegations, allow the investigator to observe the interviewee as well as record the discussion. Investigators are required to make credibility assessments as part of the investigation process. While it is possible to make a credibility assessment in the absence of an in-person interview, historically in-person interviews have provided us with the opportunity to observe responses, consider behaviours such as eye rolling, folded arms, pursed lips, confusion, anger and surprise which can be assistive tools when interpreting words and intonation when assessing credibility. Conducting a face-to-face interview provides a wider spectrum of invaluable information and is the norm.

Although not commented on directly by the Arbitrator, probing questioning may have assisted the investigator. Given the inconsistencies in the parties’ statements of events, direct and probing questions may have resulted in a different conclusion as to what version of the incident was most probable. In a situation such as this, it may have been helpful to have both of the parties demonstrate what happened including, how the roughhousing began and how it ended. With a demonstration, illogical or ill-conceived stories can usually be fleshed out and rejected in favour of a conclusion that is based on a balance of probabilities.

Capturing a person’s evidence through note taking is both an art and a skill. It is critical that notes accurately reflect the statements being made. Notes should always be reviewed after the interview to surface any omissions. As a best practice, if the notes erroneously state “did” as opposed to “did not”, make the correction when the error is found. Ultimately the notes may be entered into evidence and those notes must precisely reflect what was said by whom, otherwise the integrity of the investigation may be called into question.

These are all professional skills that continue to develop with knowledge and experience in conducting investigations. If these best practices were put into place, would the outcome have been different? Perhaps not. The litmus test for workplace investigators is whether they have followed best practices in conducting the investigation and arriving at a conclusion that is supportable by a defensible process and the evidence gathered throughout.

Kenda Murphy

About the Author: Toronto Employment Lawyer Kenda Murphy is a lawyer with over 20 years of experience in civil and criminal litigation. Over the course of her career, she has been in private practice and worked in the public sector with the Public Prosecution Service, Department of Justice and Health Association Nova Scotia. Most recently Kenda was the Associate Director & Counsel of the Employee/ Labour Relations Unit at Queen’s University.