In 2016 I was lucky enough to participate in a week-long training course for workplace investigators run by the Association of Workplace Investigators (AWI) in Ontario, Canada. AWI is an American-based association. This was the first training course they’d run in conjunction with their Canadian branch, the Canadian Association of Workplace Investigators (CAWI). I was interested to see how workplace investigations in either jurisdiction differ from our own. These are the three things that consistently come to mind when people ask me about the experience.
The first surprising thing to discover was that many US-based investigators are quite comfortable with an element of surprise in their interviews with respondents. Providing respondents with the allegations against them in writing, prior to the interview, was not common practice. The respondent may have no idea why they are in the meeting with the investigator at all. Instead, the investigator will ask a series of questions aimed at slowly getting to the heart of an allegation and eliciting a ‘spontaneous’ response.
This struck me as particularly different to the approach in Australia, which is always to give respondents the allegations in writing ahead of the interview so that they can consider their response. This practice stems from the strong emphasis in our workplace laws on ensuring a fair process for employees in circumstances where their ongoing employment may be compromised. I must say I prefer the Australian approach. Not being up-front with an interviewee in an investigation makes me uncomfortable. ‘Gotcha’ moments and ambushes undermine what should be a transparent, up front process to gather information.
Think you can spy a lie? Maybe, but not likely
Most investigators and, I suspect, the vast majority of lawyers, will be confident in their ability to determine whether a witness is telling the truth or not. Quite often, this assessment is based on a witness’ demeanour. When an investigator relies on demeanour as a measure of witness credibility, he or she presumes an ability to tell whether a witness is lying based on body language, facial expression and other behavioural cues. Many will adopt a ‘common sense’ rationale that if a witness avoids eye contact, shifts in their seat or fidgets, they must be lying. Conversely, if a witness appears ‘genuinely upset’ or is confident and forthright with their evidence, the witness must be telling the truth.
Unfortunately, research has shown time and time again that we do not have any particular talent for detecting lies in this way. Our ability to detect whether someone is telling a lie based on demeanour cues is about as accurate as a flip of the coin. In what has been described as the ‘Othello effect’, witnesses who are truthful can appear lacking in confidence out of fear of being disbelieved. Indeed, studies have proven that when a witness is telling the truth they are in fact more likely to exhibit so-called ‘deception cues’, such as fidgeting and shifting position.
Demeanour evidence, and indeed all the factors that investigators use to assess credibility, received a good deal of attention during the AWI course. I admit that until then I had not carefully scrutinised
credibility factors in this way and thought carefully about the weight that should be accorded to each one. I recommend the exercise to any investigator.
Is a ‘feather of evidence’ all you need?
Workplace investigations are about making findings in civil matters, not criminal ones. The appropriate standard of proof is therefore the balance of probabilities. In other words, all that is required is a greater than fifty per cent probability that the proposition is true.
It is common for investigators to be confronted with what seems like the need to make a ‘line-ball’ call. How do you make a decision when it’s a ‘he said, she said’ scenario? At the AWI course, it was interesting to hear one leading US expert suggest that all you need is ‘a feather of evidence’ that sways you one way or the other. In other words, that one per cent is all it takes.
Some lawyers and investigators might hesitate at that statement and ask, ‘Well, what about Briginshaw?’ Importantly, and contrary to the manner in which the decision in Briginshaw is sometimes cited in investigation reports, the decision in that case is not authority for the proposition that a third ‘standard of proof’ applies in civil cases involving serious allegations. Instead, as Mason CJ, Brennan, Deane and Gaudron JJ made clear in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, Briginshaw reminds us that ‘the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove’ [authors’ emphasis].
I prefer this comment by Justice McHugh in an exchange with the New South Wales Solicitor-General in Witham v Holloway:
…there are only two standards of proof: balance of probabilities and proof beyond reasonable doubt. I know Briginshaw is cited like it was some ritual incantation. It has never impressed me too much. I mean, it really means no more than, ‘Oh, we had better look at this a bit more closely than we might otherwise’, but it is still a balance of probabilities in the end.1
Describing the tipping point for an investigator’s assessment of evidence as weighing only as much as a ‘feather’ still sits uncomfortably with me, but ultimately I have to agree with the US expert. The standard of proof is, after all, the balance of probabilities…but I’d want to make sure that feather was a worthy one.
1 Transcript of Proceedings, Witham v Holloway (High Court of Australia, McHugh J, 10 February 1995).