4. A SHORT GUIDE TO CONDUCTING INTERVIEWS IN WORKPLACE HARASSMENT INVESTIGATIONS

The most common and often most important evidence in workplace investigations consists of statements from the parties (the complainant and respondent) and witnesses.

Preparing for Interviews

The person or people selected to conduct the investigation should be objective. They should not be the alleged source of harassment and should not be under the direct control of that person.

The investigator should be familiar with the circumstances surrounding the situation including:

• Details of the allegations (sometimes some or all of these are not obtained until the interview with the complainant).
• Details of the reply to the complaint (again, some or all of this information will be obtained in an interview with the respondent).
• The parties’ work positions and their working relationship.
• Internal policies and procedures, collective agreements (where they exist), and applicable human rights and occupational health and safety legislation.

Questions should be prepared in advance. However, one question may lead to another, so investigators should anticipate the need for further probing and follow-up questions.

Best practice is to conduct interviews in neutral, private locations away from other parties and witnesses, such as a meeting room outside the workplace. However, this is not always practical considering time frames and possible workplace disruptions. Conducting interviews on the shop floor is not advisable, but a private boardroom in the human resources office may be a suitable alternative. Avoid situations where interviewees sit in the same waiting area or meet on the way in or out of the interview.

Interviews are always with one individual. However, parties and witnesses are entitled to a representative or supporter. A representative might be mandatory in a unionized environment. The representative or supporter is not to answer questions or interfere with the process. If the representative or supporter wishes to discuss an issue with the interviewee, the interview should be paused so they can speak briefly in private before continuing.

Any special needs, including an interpreter, should be accommodated.

The Interview

Put your subject at ease. It’s an interview, not an interrogation. Before formally beginning, greet your subject pleasantly. Engage in small talk; the weather or the subject’s commute to the interview location are good icebreaker topics.

As an introduction, explain your authority to conduct the interview (refer to your policy, procedures, practices, etc.) and note the location, date, time of the interview and attendees.

The first questions should be about the subject: their title, time with the employer, reporting relationships and where appropriate, working relationships with the parties. Allowing subjects to talk about themselves helps establish comfort and rapport.

Questions should be related to establishing the material facts related to the allegations.

Further tips in conducting an interview include:

• Always use plain language and characterize events and issues in a neutral way.
• Start with open-ended questions.
• In most cases, your initial open-ended question will be effective. However, you may sometimes need to ask progressively more specific follow-up questions. For example, if you ask, “Please tell me about the staff meeting the Tuesday after the long weekend in May,” the subject will likely immediately tell you about the dispute between the complainant and the respondent and that the subject was shocked when the respondent referred to the complainant as “bitchy.” If not, you might probe by asking, “Was there any interaction in the meeting that concerned you?” You could then ask: “Was there a dispute between the complainant and respondent?” followed by “Did you hear anyone use the term bitchy?” Finally, you could ask, “Did the respondent use the term bitchy in reference to the complainant?”
• Practice active listening where appropriate: paraphrase what the interviewee says, ask them to repeat or clarify points, and probe for further information.
• Do not indicate or show approval or disapproval.
• Attempt to determine whether any coaching or collusion has taken place. Sometimes you will find that the workplace grapevine means that witnesses have discussed details of the case prior to the investigation. Take note of this. Make sure the interview focuses on what the subject actually witnessed and not what the subject was told by another person.
• Opinions and conclusions may have limited value without supporting details. For example, if a witness says, “The respondent was angry,” ask what the respondent said or did that led the witness to that conclusion.
• End the interview by asking, “Is there anything else you would like to say?”
• Sometimes new facts or evidence arise that require follow-up interviews, usually with the complainant or respondent but sometimes with witnesses as well.

Interview Record

Records of all interviews should be retained and maintained.

Digital audio recorders are relatively inexpensive and have the advantage of playback, track marking (noting the location of particularly relevant statements) and the creation of digital files, which can be stored electronically.

Recording statements by hand or using a laptop or computer is an acceptable alternative. Each method has advantages and disadvantages.

Handwritten or typed notes will not include every word. (The notes should reflect the actual words and language of the witness. Use the first person, “I heard the respondent yell…” not “the witness recalled that the respondent yelled…”)

These methods are not as complete as a digital audio recording. However, if done well, they can be just as accurate, especially where the interview subject reviews the notes post-interview, corrects any inaccuracies and signs and dates the document. On the other hand, having a subject listen to an hour-long digitally recorded interview to confirm its accuracy doubles the time for the entire process.

Audio recordings will include distracting and irrelevant noises, throat clearings, chair scrapings, etc. Sometimes meaning is lost in audio-only. A note-taker can interpret body language and sometimes more accurately capture what a subject is conveying.

Other Issues

Employee witnesses should be required by policy to cooperate with any internal investigation. If necessary, Human Resources or a member of senior management should explain this requirement to an uncooperative witness.

In some cases, a witness will attend as required but then deny knowledge of incidents that they are known to have witnessed. This can occur when a witness is reluctant to get a fellow union member in trouble. Again, the policy requiring cooperation can be cited. It may also help to explain to the witness that establishing all the facts can support a fair outcome and may reduce the likelihood of further proceedings, such as grievance hearings or civil suits, in which the witness may be compelled to testify under oath.

Caution should be used before engaging outside witnesses, including former employees, clients and customers. The investigator should do so only when necessary and only with approval of senior management. Of course, outside witnesses are not bound by internal policy and may choose not to cooperate.

The statement header should include the date, time and location of the interview. The parties may identify witnesses, but it is the investigator who decides who to interview based on the material facts that need to be proven.

Sample Statement

File Number: 0000
Personal Interview with Adam Burns

Location: Big Downtown Company
Boardroom D, 4th floor
Toronto Dominion Centre
Toronto, Ontario M7L 1K2
Phone: 416-972-1481

Date: 10:00 am

Witness Contact Info: 60 Gross Street, Apt 401
Ajax, Ontario L1T 1S5
Phone: 905-791-3026

Essential statement header to include date, time, and location of the interview.