By Julius Melnitzer | March 7, 2023
As it turns out, it’s not just employees who are working at home these days; so are the people investigating their workplace activities.
“Since the pandemic, the vast majority of workplace investigations have been conducted virtually,” said Vanessa Lapointe, who conducts them regularly in the course of her labour and employment practice at Borden Ladner Gervais LLP.
The pandemic, said Michelle Bird, a workplace investigator and lawyer with Certitude Group, changed everything.
“Before the pandemic, not many people took virtual investigations seriously, but the pandemic gave us no choice and underlined their advantages. Today, most investigators feel that not a whole lot is lost virtually.”
What is clear is that virtual investigations are less costly and more efficient.
“Scheduling and changes to scheduling on the fly are easier, and if the witness doesn’t show up or shows up late, I can work in the meantime,” said Andrea Lowes, a workplace investigator and lawyer with Certitude Group. “People can meet with me wherever they are — sometimes it’s even in their cars — so long as it’s a location where confidentiality can be preserved, there’s no travel time involved, and it’s easier to share documents on-screen.”
“When I had to travel or have the witness travel, I could get one or two interviews done in a day. Now I can work in four or five one-hour sessions.”
Virtual meetings also facilitate the interview process.
“I have access to everything at my fingertips, which makes it a lot easier to cross-reference,” said Lowes, who noted that she’s only conducted two in-person investigations since the pandemic, both at the client’s insistence.
As Lapointe sees it, virtual investigations are more likely to happen in a timely fashion — and that’s important.
“An investigation involving parties working together or interacting personally or virtually should not be postponed, as it can escalate the conflict and the related stress on the parties involved,” she said. “The more time that passes, the less reliable will be witnesses’ recollection, and postponing the investigation — even for a few weeks — can erode the complainant’s trust in the employer and the investigation process.”
The majority of employees, like most employers, are comfortable with virtual investigations, largely because they can choose the environment in which they are interviewed.
But there are exceptions.
“Sometimes it’s necessary to see the workplace first-hand or review other evidence in person; sometimes witnesses are not comfortable in a virtual environment, or they might have a lot of printed material or physical evidence that they wish to hand over in person,” Lapointe said.
And there are some disadvantages.
“Some rapport can be lost,” Bird says. “For example, if someone is really upset and crying, we can’t offer them water or a tissue, although we can do a lot with words or facial expressions.”
Other issues, Lowes adds, are distractions in the location the witness has chosen, as well as the odd problem with video quality.
But the notion that credibility assessment suffers in a virtual setting seems to be going the way of the dinosaur.
“Expert studies have shown that relying on our internal lie detectors to assess credibility is preposterous,” Lapointe said. “That being said, investigators should still factor demeanour — which they can appreciate just fine in a virtual setting — into their assessment, but should do so very carefully.”
To the extent that demeanour matters, Lapointe argues that virtual environments offer some advantages in assessing it.
“On Zoom, the camera is up close and personal, and the investigator can see the witness’ eyes and facial features very clearly. The witness is also less aware that they’re being observed than if the investigator is in the same room. And finally, witnesses are more likely to be themselves and less conscious of demeanour when they’ve chosen the environment in which to give their evidence.”
Bird is of similar mind.
“I’m not a big fan of assessing credibility by way of demeanour, because we’re not body language experts, and body language can be messy. I prefer to rely on the words spoken, how they mesh with other information, and whether the witness is answering the questions directly.”
As is Lowes.
“I don’t want to hang my hat on non-verbal cues because the situation is often a stressful one and everybody reacts differently.”
Virtual investigations, however, do import considerations to which investigators have had to adapt.
“It’s important, for example, that investigators are comfortable with the virtual platform, which is sometimes run by a third party or the employer, to the point where they should be able to provide technical assistance to their witness.”
Investigators must remember too that they do not control the witness’ environment, which can present challenges.
“The investigator should confirm that the witness is not recording the interview and that no one else is in the room,” Lapointe said. “And before the interview, the investigator should determine whether another company employee lives with the witness or is present in the witness’s location so as to avoid unintentional confidentiality breaches.”
What is certain is that workplace investigations have come full circle.
“In the last three years, we’ve gone from ‘We’d never do it’ to making virtual investigations the default,” Bird said.
Julius Melnitzer is a Toronto-based freelance legal affairs journalist and communications and media consultant to the legal profession. He can be reached by email directly at [email protected] or at his website, www.legalwriter.net.
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