Published on: April 14, 2022
When questioning goes wrong: How workplace investigators can avoid claims of bias through proper interview techniques?
One of the most commonly referred-to examples of what not to do during an investigation is the Alberta case Elgert v. Home Hardware Stores Limited (2011 ABCA 112). In this case, the complainant made false allegations of sexual harassment against the respondent, which were ultimately found to be substantiated through a faulty and unfair investigation process. With respect to the investigation interviews in particular, the investigator did not ensure that the respondent had details of the allegations in advance of his interview, and also asked inflammatory and irrelevant questions during other interviews. In particular, the investigator asked if there was any “gossip” relating to the respondent. The respondent was fired, and was later awarded damages.
More recently, in Ontario Power Generation v Society of Energy Professionals, (2020 CanLII 142) a labour arbitrator found that a workplace investigation was biased and unfair, due in part to the interview technique of the investigator. In this case, the grievor faced allegations of inappropriate and unwanted sexual conduct towards a co-worker. Contrary to requirements of procedural fairness, the grievor was not provided with any details of the allegations prior to being interviewed. During the respondent’s interview, the investigator asked general, open-ended questions, such as, “Have you ever touched [the complainant] or made any kind of physical contact with her?” The investigator did not move beyond these open-ended questions to ask specific questions about the allegations under investigation. The arbitrator noted that – in addition to other deficiencies in the investigation – the “impact on fairness was compounded by the open-ended questions” the investigator asked. While open-ended questions are useful (and in many cases preferable) when conducting witness interviews, when it comes to interviewing the respondent, an investigator must ensure that they have the opportunity to speak to the specific allegations against them.
Good interview technique is at the heart of any fair, thorough investigation. As demonstrated by the cases above, failing to adequately prepare for an interview can result in areas of questioning that are vague and irrelevant, and can lead to an appearance of bias. In order to keep interviews on track, investigators should consider asking themselves the following questions:
1) Am I adequately prepared?
Prior to entering the interview room, the investigator should be familiar with the written complaint (if there is one), and the evidence that has already been collected through other interviews and document requests. Ideally, a comprehensive set of questions should be prepared in advance, although there is of course room to deviate from these prepared questions when other points are raised.
2) Are my questions squarely related to the allegations?
While it may be tempting to ask more general questions about the parties, an investigator needs to be careful not to begin fishing for information (negative or positive). All questions should be related to information the investigator needs in order to make their factual findings.
3) Have I covered all aspects of the allegations?
The respondent should be provided with an opportunity to answer specific questions about the allegations against them. If the investigator asks only general questions and does not follow up, this could lead to a conclusion that the investigation was not procedurally fair.
If you would like more information on how to ensure you are getting the most complete and reliable information from your investigation interviews, consider attending our one day PEACE Interview Framework course for an overview of the technique or the five – half days P.E.A.C.E Interviewing course where you will get to practice your interviewing technique using the PEACE interviewing framework.