CANADA Law and Practice Contributed by: Sarah C Crossley, Laura J Freitag and Naomi Santesteban, Filion Wakely Thorup Angeletti LLP
3.5 Neutral Party The primary objective of workplace investigation inter - views is to obtain the best evidence from the person being interviewed. As such, the workplace investiga - tor will want to give some thought as to how to create an environment in which the interviewee will feel com - fortable and, in turn, provide the best and most com - prehensive evidence. There may be circumstances in which an interviewee (or an investigator) may ask for a neutral third party to attend the meeting, for example, an interpreter or someone to assist the interviewee as On occasion, an interviewee will ask to bring a friend, family member or other support person to their inter - view. Subject to any applicable workplace policy or collective agreement, whether a support person is permitted or not is generally a decision made by the investigator. If the investigator is concerned that the support person may intervene in the course of the meeting, attempt to provide evidence on behalf of the interviewee and/or the person being interviewed may alter their evidence as a result of the presence of the support person (ie, a spouse attending in a sexual harassment case), then the investigator may want to suggest the support person can accompany the per - son to the interview but not be with the interviewee during the meeting. If a support person is permitted to attend, the investigator should make sure that the interviewee is providing the evidence, and not the support person. The investigator will also want to con - sider, before permitting the support person to attend the interview, whether they could be a potential wit - ness in the investigation. Neither an actual witness nor a potential witness should be permitted to attend as a “support person” as it could compromise the integrity of the workplace investigation. part of an accommodation measure. 3.6 Support Person and/or Lawyer In an internal HR workplace investigation, a party does not generally have the right to legal counsel present during their interview with the investigator. This, of course, is subject to any applicable workplace policies and rights provided for in such policies. As previously mentioned, a primary goal for a workplace investigator is to obtain the best evidence from the interviewee. Legal counsel’s attendance (particularly ones who are knowledgeable about workplace investigations) can
often facilitate the investigation process. If, however, counsel that attends an interview attempts to provide evidence on behalf of their client, regularly interrupts and/or intervenes in the meeting, makes “submis - sions” or is otherwise obstructionist, the investigator should remind counsel that it is in their client’s best interests to permit them to provide their account of what happened uninterrupted and in their own words. 3.7 Information An interview for a workplace investigation gener - ally consists of three parts: (i) an introduction; (ii) the fact gathering; and (iii) the conclusion. While differ - ent investigators may have different approaches, the introduction portion of the interview often involves the investigator: • identifying themselves and summarising their role; • explaining the mandate and answering any ques - tions the interviewee may have about the investiga - tion process; • reminding the interviewee of the importance of being truthful and maintaining confidentiality with respect to the investigation process, the subject matter(s) discussed, the questions asked and infor - mation provided; and • discussing what protections may be available to the interviewee with respect to any reprisals or retaliation. 3.8 Stopping the Interview If an interviewee stops an interview for any reason, the workplace investigator should make a note of the time the meeting was stopped, the reasons the meeting was stopped and what happened as a result. It is sometimes hard to know while an investigation is ongoing what information may ultimately become relevant. For example, a respondent who has been found to have engaged in workplace harassment, may assert they provided incomplete or incorrect evidence during their meeting with the investigator, which they described as “very long, and without any breaks”, when, in fact, the investigator’s notes reflect that the meeting with the respondent was a total of 90 minutes and included one washroom break and two additional breaks so that the respondent could confer with counsel.
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