In Bethany Care Society v. Alberta Union of Provincial Employees, 2014 CanLII 50659 (AB GAA), Arbitrator Andrew Sims found flaws in an internal investigation to be of sufficient importance as to require comment. It is precisely his commentary respecting the conduct of the investigation that is of value to all who do workplace investigations.
Allegations of resident abuse were made by a Health Care Aide, Danielle Allen, against another Health Care Aide, Janelle Clarke. The abuse was said to have occurred when the two co-workers were employed on the same dementia unit in January 2013.
After Allen completed her shift with Clarke on January 11, 2013, she was so upset by the actions of Clarke that she felt compelled to send an email outlining her version of the events to Shelley Rolfe, Care Service Manager. On January 15, 2013, upon receiving Allen’s email, Rolfe asked Allen to attend the facility and sign the email that she (Allen) sent but asked her no further questions. Rolfe then called Clarke and, without providing any particulars as to what the allegations were or who made them, advised Clarke that she was suspended with pay pending an investigation and arranged to meet with Clarke and her union representative on January 17, 2013.
On January 16, 2013, Rolfe and Dave Garratt, Manager Employee and Labour Relations, met with Allen to receive the full details of what she alleged had transpired during her shift with Clarke. During that meeting, both Rolfe and Garratt took notes. After the meeting, the two conferred and concluded that Allen’s account was credible.
Rolfe then prepared a set of typed questions that she ‘rigidly’ used during the interview with Clarke. At the end of Clarke’s interview, Rolfe and Garratt met and determined that Clarke was lying and that the incidents happened as alleged by Allen. In reaching this conclusion, however, the Employer did not make any immediate decision, but instead took a few days to process the information.
The Employer determined that termination was necessary as resident abuse constituted an irreparable breach in the trust relationship and conveyed this decision at a disciplinary meeting held with Clarke on January 24, 2013. The Union grieved the termination.
Referencing the process of the workplace investigation, Arbitrator Sims stated that it was his experience that investigators should avoid making premature credibility assessments, which would include arriving at any conclusions prior to hearing the whole story.
Of critical significance to the conduct of the investigation was the fact that when Clarke attended the investigation meeting on January 17, 2014, she had not been told anything about what she had allegedly done or who had reported the incident that involved “two initially unnamed residents”. As the meeting proceeded, it became clear that Clarke was not responding to any incident that may have involved her work alongside Allen but instead spoke to a minor incident involving one of the same residents involved in the complaint and another co-worker. The Arbitrator said, “My conclusion is that the interview process was less fair than it might have been to Ms. Clarke and the conclusions thus drawn were as much a result of Mr. Garratt and Ms. Rolfe’s approach to the interview process than to Ms. Clarke’s candour.”
It was in this vein that the Arbitrator also commented on the use of prepared questions and his concern that adhering too tightly to those questions may interfere with getting the information on the material facts in issue. Sims stated, “My sense is that Ms. Rolfe and Mr. Garratt went into the interview having already and prematurely decided that what Ms. Allen was saying was true. Ms. Rolfe conducted the interview relying unduly (in fact entirely) on her pre-typed notes. Notes are helpful tools, but particularly given Ms. Clarke’s character and ability to understand and respond clearly to questions, some effort should have been made, despite the notes, to focus her attention on the shifts in question.”
Arbitrator Sims ultimately concluded that, on a balance of probabilities, the incidents as reported by Allen took place substantially as she described. He arrived at that conclusion based solely on the unfolding of the evidence at the hearing of the grievance as opposed to being guided or aided by the information gathered during Clarke’s investigation interview.
What does this mean for an investigation practice?
- The process must be seen to be fair, particularly in retrospect. This requires ensuring that the subject of the investigation knows the allegations against her in sufficient detail to understand what she is alleged to have done and is afforded the opportunity to respond fully to those allegations;
- Investigators must maintain an unbiased approach to information gathering. This includes not rushing to judgment about what we believe happened when we don’t have the whole story; and
- Investigators should assess the credibility of the parties and witnesses only after all of the information has been gathered and the different versions of events have been tested.