HE, SHE OR THEY: WHOM DO YOU BELIEVE?

Assessing credibility in workplace investigations

By Cynthia Lazar

Investigators are often faced with differing versions of facts from the complainant, respondent and witnesses.

How does the investigator decide whom to believe?

Before beginning to assess credibility, an investigator should ensure all witnesses have been provided the opportunity to give their version of the facts on each important point. If the investigator is going through their notes and realizes one witness mentioned something of consequence that another witness was not asked about, they should circle back with the witness and offer them an opportunity to have their say. This doesn’t have to be complicated; usually a quick e-mail will suffice. Once the investigator is sure everyone has been asked about each important point, it is time to start assessing credibility.

Credibility findings should be made with respect to each individual conflict in the evidence — the investigator does not have to believe everything one witness says and disregard the entirety of another’s account. Each conflict in the should be assessed separately. The investigator may accept one person’s evidence on one point and another’s on a subsequent point.

Some of the factors investigators look at to assess credibility include: corroboration; opportunity and capacity to observe; consistency of prior statements; plausibility; avoidance/candor; investment in outcome/motive to lie; bias; historical context; reputation; demeanour; and the effect of trauma.

CORROBORATION

Corroboration can be direct where more than one person provides the same version of the facts — for example, I saw the respondent throw a shoe at the complainant — or documentary evidence of a fact, such as an e-mail containing an insulting comment. Corroboration can also be indirect. In this case, a witness hears or sees something at the time of an event or shortly thereafter,

which is consistent with one version of the facts. For example, I heard shouting in the hallway and came out of my office to find the complainant crying and the respondent walking away.

OPPORTUNITY AND CAPACITY TO OBSERVE

Before relying on a witness’s statement, the investigator should ascertain whether the witness observed the event directly or heard about it from someone else. If a witness claims to have observed something directly but was not in a position to do so — they were not present, not looking in the right direction or were too far away to hear — then the witness’s credibility on this point is low.

CONSISTENCY OF PRIOR STATEMENTS

Is the witness’s evidence consistent or inconsistent with prior statements or other documents?

Memories change with time. For example, if a supervisor’s evidence is an employee performed poorly on an assignment but their performance evaluation of that employee

KEEP IN MIND WITNESSES SUFFERING TRAUMA MAY NOT REMEMBER EVENTS IN CHRONOLOGICAL ORDER OR VIOLENT DETAILS IF THEY FOCUSED ON LESS EMOTIONALLY CHARGED FACTS TO ‘GET THROUGH IT.’

for the same time period was positive, that contradiction needs to be explored.

Has the supervisor’s memory been influenced by more recent events?

PLAUSIBILITY

How believable is the witness’s version of events?

Sometimes coincidences happen, or unlikely events, but they need to be explored and taken into consideration.

For instance, how likely is it that a lactoseintolerant employee stole another person’s cheese?

AVOIDANCE /CANDOR

Does the witness candidly admit to unflattering facts about themselves? Is the witness repeatedly avoiding providing a direct answer to a question, even after being given several opportunities to answer?

If a witness is consistently evasive on a number of issues, credibility is lowered. However, if the witness readily admits unflattering facts but then refuses to give a direct answer to an isolated question, the investigator may conclude the witness is determined not to lie and is instead choosing to evade. The evidence with respect to the

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unanswered question may not reflect well on the witness but their credibility on other questions may be boosted.

INVESTMENT IN OUTCOME/MOTIVE TO LIE

Those who are personally invested in the outcome of an investigation may shade their evidence to advance their interests. This includes not just the complainant or respondent but other witnesses who may be affected by the outcome. A respondent will always have a motive to lie but that does not mean they actually will. An uninterested third party, such as a supplier who witnessed an incident, likely has no motive to lie.

BIAS

Everyone has bias so it is inevitable; however, it must still be accounted for.

What is the relationship between witnesses: friends, colleagues or rivals? Does one person’s career prospects hinge on a relationship with another?

HISTORICAL CONTEXT

Is there history in the workplace that might impact or inform the investigation? Have there been similar complaints made by others against the respondent? Has the complainant filed unsubstantiated or malicious complaints in the past?

REPUTATION

Does a particular witness have a reputation for exaggeration or ‘straight-shooting?’

Investigate the basis for the reputation.

Is someone considered dramatic based on a long history of tumult or because of one outburst on a bad day?

DEMEANOUR

Many people think demeanour is important in assessing credibility. For instance, they believe someone who does not make eye contact is being untruthful. This is a dangerous misconception. Demeanour is actually a very poor and misleading indicator of credibility. Demeanour can be influenced by cultural or personal differences, or other irrelevant factors. It should not be used in assessing credibility.

THE EFFECT OF TRAUMA

Where the alleged incident that brought about the investigation is traumatic, the investigator should take a trauma-informed approach. This is a complicated topic and requires specialized training. Keep in mind witnesses suffering trauma may not remember events in chronological order or violent details if they focused on less emotionally charged facts to ‘get through it.’ They may also ‘act normally’ around an aggressor after a traumatic event in an attempt to suppress and normalize the incident. This is not a sign ‘nothing happened.’

CREDIBILITY FINDINGS

Once credibility is assessed, the investigator must then decide ‘on a balance of probabilities’ what happened. This means determining which version of each disputed fact was more likely to have occurred. The investigator, unless instructed otherwise, should include their reasoning in the investigation report.

ABOUT THE AUTHOR: Cynthia Lazar is a Lawyer and Workplace Investigator at Taylor McCaffrey LLP. She can be reached at clazar@tmlawyers.com or 204-988-0300.

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