Credibility Assessments: A Case Study
As an investigator, one of the questions I get asked most often is, “How do you know who is telling the truth?” It is a great question, and one that I think all investigators grapple with. Indeed, one of the hardest parts of report-writing is drafting the credibility section. My colleague Megan Forward previously provided a “credibility assessment lexicon” that can come in handy when writing about a party’s credibility. A recent arbitration decision out of Alberta provides some valuable pointers on how to properly assess the credibility of a party’s evidence.
In Health Sciences Association of Alberta v. Capital Care Group Inc., a pharmacy technician grieved her termination. The employer had terminated the grievor for bringing false claims of harassment, intimidation, and bullying against her manager. An independent investigator had investigated the complainant’s allegations against her manager and determined that they were brought in bad faith. In considering whether the grievor did in fact bring her complaint in bad faith, the arbitration panel closely examined the investigator’s report, including the investigator’s assessment that the grievor was not credible.
At the outset of her report the investigator set out the legal test for credibility as stated in the decision of Faryna v Chorney. Paraphrasing from this decision, the arbitration panel helpfully broke down the test for credibility as follows:
the Court says the real test of credibility requires a decision-maker to put the witnesses’ story in context, subjecting it to an examination of its consistency with the existing conditions; it must be in harmony with the preponderance of the probabilities that a practical and reasonable person would recognize as reasonable in the circumstances.
The arbitration panel then went through the reasons why both they and the investigator felt that the grievor was not credible in providing her evidence. I have set out some of these reasons below as they are helpful considerations when struggling with the question of who is telling the truth.
- The grievor’s story expanded on each re-telling. The arbitrator found that on each re-telling of the story, the grievor’s version of events expanded. The arbitrator distinguished between a version of events changing as a result of “retrospectively filling in the gaps” vs. a “conscious effort to expand and embellish” the severity of her allegations. In this case, the complainant’s original written complaint did not contain any reference to physical threats by the respondent, whereas in her subsequent interviews with the investigator and before the arbitrator, her version of events changed “dramatically” to include concerns that the respondent would hit her.
- The independent witness supported the respondent’s position. Credibility assessments can be made a lot easier when you have the evidence of an independent witness, helping you avoid the dreaded “she said, she said” situation. That being said, you still need to consider the credibility of the witness. In this case, the arbitrator determined that the witness’ evidence was “compelling and persuasive” given the witness’ simple and clear answer to whether she had a concern that the respondent would become physical with the grievor.
- Internal inconsistencies in the grievor’s evidence. The investigator noted in her report that in the same interview the grievor gave inconsistent evidence. Sometimes this is only noticeable after the interview when you are going through your notes. If this occurs, be sure to put the internal inconsistency to the party in a follow-up interview and allow them an opportunity to respond to it, as the inconsistency may have simply been a misstatement of their evidence.
- The grievor failed to distinguish between something she had observed and something that someone had told her about. The investigator noted that the grievor would assert an event as having occurred, even though it was unclear whether she had been a direct witness to it. If you are questioning a party and you are having difficulty getting a straight answer from them, pay attention to this and ask more probing questions, as it may be an indication of a lack of credibility.
- The grievor’s version of events is not objectively reasonable. When assessing credibility, the person’s version of events must be plausible to a reasonable person. In this case, the investigator found that the scenarios the grievor was describing to her as “threats” or intimidation were in fact instances that a reasonable person would have accepted as being legitimate feedback from a manager. While a complainant may genuinely believe that he or she has been harassed or intimidated, their subjective perception of the event must meet a standard of reasonableness.
- The grievor’s motivation. In this case, several other complainants brought complaints about the same respondent, however the grievor was the only one who was found to have been acting in bad faith in bringing her complaint. Two witnesses expressed concerns about the complainant’s motivation, citing her “hatred” of the respondent. The investigator found that the grievor encouraged others to bring forward their complaints against the respondent out of a deliberate desire to see her manager removed, rather than a genuine belief that she was being harassed. This is an important reminder to ask complainants about their motivation in bringing a complaint forward, and to ask whether they have discussed their concerns with others in the workplace prior to making their complaint.
Assessing whether someone is “telling the truth” in an interview can be a challenging and daunting task, especially when there are serious allegations at issue. The above considerations can assist an investigator in arriving at a reasonable, well-thought out conclusion that can withstand scrutiny.