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By Tony Poland, LegalMatters Staff • Precise credibility assessments are essential to ensuring fairness in a thorough and balanced workplace investigation, says lawyer and workplace investigator Harshi Mann.
“Often the investigations we do are extremely serious. Certainly, they can impact a person’s career trajectory, their social and work reputation, as well as their livelihood,” says Mann, of Mortimer Khoraych PC. “Credibility is something we take seriously. That is why we focus on being thorough, detailed and precise when we do credibility assessments.”
“There are many factors to consider when assessing an individual’s credibility,” she tells LegalMattersCanada.ca. “We look at evidence from many different sources because it is important to be exact and comprehensive when deciding to believe one witness over another. Precise credibility assessments are one of the things that our firm does really well.”
Mann conducts workplace and institutional investigations into a wide range of allegations, including harassment, sexual harassment, workplace violence, and discrimination, including micro-aggressions and anti-Black and anti-Indigenous racism.
“A great deal goes into the truth-seeking function of an investigation,” she says. “Our firm cares deeply about keeping up to date with the current law and ensuring we are achieving the industry best.”
Caution with demeanor evidence
Mann says investigators must avoid the temptation to jump to conclusions, especially when it comes to demeanor evidence.
“Demeanor evidence is one of the things that an investigator must be cautious of,” she explains. “How a witness presents themself in an interview may influence what you think of their evidence. For instance, if an individual has been accused of yelling at a colleague or speaking to them aggressively and during your interview, you observe that their tone is becoming aggressive or elevating, it may lead you to suspect that they could be guilty of the alleged behavior.
“However, that is actually something that we caution ourselves against,” Mann adds. “Just because a person is acting in a certain manner during their interview, does not make it more likely that they acted in that manner on a previous occasion.”
She says she is careful to build an informed decision based on the entirety of the evidence.
“It is possible that an individual did yell at their colleague, but I would not rely on just their demeanor to make that finding,” Mann says. “My decision would be based on several other sources of evidence.”
Investigations can be stressful
Being part of an investigation, even if you are not being accused of wrongdoing, can be stressful, she says.
“Demeanor evidence on its own is not the most precise indicator of credibility,” Mann says. “The Supreme Court of Canada has cautioned against this.”
Finding additional sources of evidence to collaborate a witness’s testimony is important, she says.
“A witness may provide us with documents that corroborate their oral evidence, which strengthens their credibility,” says Mann. “Records such as pictures, text messages, emails, video or audio recordings can help support a witness’s testimony.
“When there is no electronic or physical evidence available, we consider other factors when assessing credibility” she adds. “For instance, assessing a witness’ capacity or opportunity to observe the conduct in question, whether they were inconsistent on material points, whether they have a bias against a particular party, or whether their evidence is plausible, to name a few factors.”
The truth-seeking function of investigations takes more than simply asking questions, Mann says.
Precision and discipline needed
“It requires precision. It requires discipline from the investigator to ensure they are getting the right information from the right sources and placing the right amount of weight on each piece of evidence,” she says.
Part of that process may involve follow-up interviews, Mann says.
“We routinely do follow-up interviews with the main parties,” she says. “We like to give witnesses the opportunity to respond to adverse evidence that we collect during the investigation. But it also allows us to assess the witness’s credibility more thoroughly. If their story changes suddenly between the first time we met and the second time, that is a factor we would consider.”
That does not necessarily mean that the witness’s account cannot be trusted, says Mann.
“Sometimes there is a legitimate reason for their version of events to change,” she says. “They may have learned new information that has altered how they view things. But that is something that we would investigate further.”
Giving participants confidence
Building a rapport with witnesses is also an integral part of the investigation, Mann notes.
“We try our best to make it as comfortable as we can so witnesses can be candid,” she says. “I am very upfront and honest about the process with each party in order to give them confidence in the investigation.”
Mann says a credibility assessment is informed by “a constellation of factors.”
“A workplace investigation can have a lasting impact on participants,” she says. “That is why you want an investigator who conducts precise and comprehensive assessments and is well-informed and disciplined regarding the pitfalls of focusing on one single factor.”
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