One of the questions that I am often asked in training, and with increasing frequency in the past few years is: Can I take notes in an interview on my laptop? This is usually quickly followed by the proclamation: “I type a lot faster than I write”.
My answer has always been a reluctant “Do what works for you, but let me explain why I don’t do that” as I draw upon my stored experience to provide real world examples.
Today, while travelling to Calgary for another interview, one in which I will write my notes by hand and then transfer those to the computer using voice recognition software, I stumbled across an article that brought me some new thoughts that I wanted to share immediately.
The Title? “This is Why You Should Take Notes By Hand Instead of With a Laptop” The data for the article comes from a new study published by Pam Mueller and Daniel Oppenheimer (from Princeton University and University of California respectively). It was found that students who took notes on paper learn significantly more compared to their laptop-addicted peers.
Turns out that laptop users type almost everything they hear without processing the meaning or devoting much thought to what it is they’re taking notes on. When you take notes by hand, you obviously can’t write down every single word uttered. So you listen, summarize, and list only the key points. Your brain is more engaged in the process of comprehension and so the information processed this way is remembered better.
Seems like a recipe for better Harassment Investigation interviews and on the path to better statements and more efficient use of time to me. You’ll find me in the note pad section of your local Staples!
When to investigate a matter that occurs outside of the workplace.
One of the questions that I get asked in training quite a bit is whether an event that happens outside the workplace should be investigated. This case illustrates some of the current thought in the area and confirms the basic tenet that inaction is seldom the appropriate response.
The Case
This case is straight-forward in some ways and not as much in others. Some facts were agreed upon by the parties. It is agreed that Bruce, a 54 year old Registered Nurse and married father of two began working with Jane, a 24 year old Administrative Assistant who was single. Bruce acknowledged that he began flirting with Jane in the workplace and he described the activity as mutual. This is where the stories begin to diverge.
The events that follow led Jane to file a report with the Police, Bruce’s arrest and the laying of criminal charges against him, and his unpaid suspension from the workplace. The employer chose to conduct a workplace investigation even though the majority of the events that led to the criminal charges occurred outside the workplace. Bruce was less than fully cooperative with that investigation. At the conclusion of the investigation, Bruce was terminated for cause and his Union filed a grievance on his behalf. An arbitration followed.
After reviewing the evidence in the case, the Crown Attorney declined to file criminal charges.
The Events
Jane testified that shortly after she began work Bruce started to “hit on her” and his actions made her very uncomfortable. Jane did not know what to do as she was new to the organization, relatively young and inexperienced and she felt intimidated by Bruce’s position in the organization. Bruce’s actions toward her increased and culminated with him slapping her “rear” on two separate occasions in the workplace within two days. Jane asked Bruce to stop the behaviour and he said that he would.
Bruce denied the allegation of physical contact but agreed that he was flirtatious with her while at work on a number of occasions.
Jane testified that a day later she finished work and headed to her parents’ home for the night (nobody else was home). It is undisputed that Bruce went to the house at the end of his shift. Jane said that he appeared at her door and she asked him how he knew where she was. He told her that he had looked up the address on the internet and he walked in uninvited. Jane said that Bruce grabbed her hand, placed it on his buttocks and asked “isn’t that hard”. Jane testified that Bruce proceeded to sexually assault her and when she begged for him to stop, he ignored her. Jane said that eventually Bruce left, but not before threatening that she better not tell anyone at work what had happened.
Bruce’s story of the night in question is different. He insisted that Jane called him at work and after a sexually charged conversation, invited him over. He claimed that all the activity in the home that night was consensual.
Jane told her boyfriend and her parents about what happened and they went to the Police and the incident was reported to the Employer. The employer had to decide whether to investigate themselves or whether to rely on the criminal proceedings. Ultimately, they decided that the events were tied to the workplace and that they should conduct their own investigation.
Jane cooperated fully with the internal investigation. Bruce did not and put up barriers for the employer to obtain relevant documentation from his licensing authority. During the arbitration hearing it came up that Bruce had some conditions placed against his license that were related to another case of sexual harassment in another workplace.
The Union objected to the fact that the employer conducted an investigation at all, contending that the events in question occurred outside the workplace, between two adults and that the police were looking into the events. The Union also objected to the length of time of the internal investigation. It took almost a year to go through the entire process, which included requesting information from Bruce’s licensing body, and a mediated settlement attempt.
Decision
The arbitrator ruled that Jane’s evidence regarding the night in question was to be preferred quoting cases from the Supreme Court of Canada (R. v. Gagnon [2006] SCC, at papa 20 & F.H. v. McDougall [2008] 3 S.C.R. 41, 2008 SCC 53, at para 49) which spoke to the assessment of credibility.
With relation to the employer investigation, the Arbitrator ruled “In my view, on the basis of the evidence before me, the employer had the right, if not the obligation, to investigate the matter, and if considered necessary, to apply discipline.” The Arbitrator commented that the behaviour began in the workplace and by Bruce’s own evidence, he was attempting to start a relationship with Jane in the workplace.
In terms of the delay in the investigation, the Arbitrator found that the employer did not act in bad faith or that there was deliberate inaction.
Emma, Allen and Jim worked together in a Correctional Facility. Allen and Jim were on the Tactical team and had seniority over Emma. Emma was 21 years old when she started her work and was physically smaller than both Allen and Jim. The events that led to an Arbitration included an allegation that Allen and Jim picked Emma up, carried her into the male change room (despite her loud objections), placed her on her back on a bench in that location, and undid her belt and pants. They were interrupted by a male co-worker (Paul) who walked out of the bathroom area. The incident lasted 30 seconds. Further events occurred that day between Allen, Jim and Emma. Emma filed a complaint and an internal investigation found her to be more “credible” than Jim and Allen. They were terminated and criminal charges were filed. Jim and Allen were convicted of sexual assault at Provincial Court, however, Allen applied for a mistrial and the charges against him were eventually stayed. Jim appealed his conviction and it was overturned by the Court of Queen’s Bench. Jim and Allen grieved the Employer’s decision to terminate them and an Arbitration Panel heard submissions.
One of the central issues at Arbitration was the evidence presented that there was horseplay, teasing, and pranks, some of it sexual and that the activities were common among many staff, including management. Numerous examples of horseplay, some involving Jim and Allen as well as Emma were provided by various witnesses. Examples included grabbing one another, patting on the bum, hugging, and commenting on body parts and sexual acts. Other examples were the ripping off of clothing, placing a co-worker in restraints, and pulling on a female staff member’s underwear. Evidence was submitted that various levels of management witnessed, condoned, participated and even justified this behaviour at Arbitration as activity that was essential to “blow off steam” in their particular high stress environment. One of the Union’s contentions in grieving the Employer’s termination of Allen and Jim was that this behaviour was common, condoned, Emma participated and that the actions that led to their dismissal was merely more of the above, horseplay.
The Day in Question
It was not disputed that Jim and Allen picked Emma up, carried her into the men’s change room and placed her on her back on a bench in that room. Jim and Allen denied that Emma had resisted their actions and characterized her as a willing participant to their joke. They denied that Allen had undone Emma’s pants or belt. Jim and Allen described Emma’s behaviour as joking directly after this event, a contention that they felt strengthened their contention that nothing untoward had happened.
Emma contended that she had in fact been harassed, had in fact yelled at Jim and Allen to stop the actions and that they had only stopped when a third party (Paul) entered the room.
Paul gave evidence at the Arbitration that he had a fleeting view of Emma in the room, with Jim and Allen holding her on the bench and stated he thought that Allen was “tickling” Emma. He stated that he did not see any evidence of Emma’s pants being undone. Paul indicated that when he made a joke about what he saw (and assumed had been a prank) in the lunch room, Allen threatened him by telling him to “keep his mouth shut” and implied that he would not “be there” when Paul needed help in the Facility. Numerous witnesses described Emma’s mood as significantly different after the event had occurred.
Emma testified that after the event, she resumed her shift in the control room with Allen and Jim and that they attempted to intimidate her further. She testified that Allen told her that if he had her pants down in the change room he would have raped her (using extremely vulgar terms). Allen also dropped a pencil and when he picked it up, attempted to pry Emma’s legs open and made comments about oral sex. Jim and Allen denied these allegations and there was nobody else in the room.
The Investigation
Jim and Allen were suspended and an investigation occurred. Credibility was at issue and the investigator’s made the conclusions that Emma’s entire statement was “believable because her credibility remains strong” and that Emma “presented as a very honest witness” who spoke of her own part in previous joking with Allen and Jim. In cross-examination the investigator was questioned on some inconsistencies in Emma’s version with the attempt to undermine the credibility finding.
The Arbitration Finding
The Arbitration Board set out on the difficult task of determining the facts of the case. They relied on cautions seen in Faryna v. Chorney [1952] 2 D.L.R. 354 (B.C.C.A.) at 357, which we have seen referenced commonly and which relates specifically to the considerations necessary to determine credibility. One of the more important points in this award is the difference in the assessment tool of the Arbitration Panel and the internal investigation. Although they reach, essentially, the same conclusion, one is based on statements like “presented as a very honest witness”, which is open to attack and interpretation and the other is based on a reasoned, methodical analysis, supported by the jurisprudence related to the topic. After careful consideration, the Panel preferred Emma’s version of the events that day and upheld the dismissal of Allen. The Panel substituted a suspension for Jim, with the reasoning that he was not as involved in the direct actions against Emma (not undoing her pants or making the threats or comments later in the day) and that he made several attempts to determine if Emma was okay, showing some concern for her well-being. The Panel concluded that Jim was disentitled to any back pay (for over 3 years) or other compensation.
To Consider
I ask myself: What part did the permissive environment play in this case? Why does almost every environment consider itself somehow special to the point where activities like this can be condoned by management? By people who are supposed to be leaders in the organization?
I ask myself how I do my job, investigating and training. Is it simply enough to believe a witness, how do I determine credibility, and how would I answer cross-examination on the cases I am currently working on. How do I affect the individuals I encounter and the organizations that come out to training or hire us to conduct investigations?
I, for one, wish to do all I can to limit this type of behaviour in allworkplaces, no matter how unique they deem themselves. For my part, I’ll help train managers to recognize their responsibilities and duties in eliminating these examples and I’ll train investigators to ask themselves just what they will do when faced with cross-examination related to their investigative techniques and conclusions.
