Workplace Investigation: When Someone Lies

[00:00:00] There are a lot of false allegations in workplace investigations or... Okay, let me check that. Maybe there's a lot of false allegations in investigations because that's what I'm hearing a lot of from my audience right now. So if you suspect a false allegation in a workplace investigation that you are providing oversight to, what should you do? So I'm Andrea Adams and today on The HR Hub, I'm back with Bob Stenhouse.

[00:00:29] Bob's the Principal Director of Veritas Solutions and a former lead investigator for the RCMP. He's here to help us spot red flags of false allegations and also how to handle them when they come up or when the evidence is just not lining up. Hi, Bob. How are you? I'm doing well, Andrea. Thanks for having me again. Thank you for coming on. Okay, so this is something, particularly that episode we did on credibility assessments.

[00:00:56] This comes up in the comments a lot. So what's the difference between a complaint that turns out to be unfounded and one that was made in bad faith, which I think bad faith is when that's a false allegation? Great questions. And to parse it even more, to make it even more confusing, there's this legal term called vexatious,

[00:01:22] which is related to primarily the impact that it has on the systems. Then you have bad faith, which is primarily related to something that's brought forth dishonestly. And then you have false allegations versus unfounded, meaning that didn't meet the threshold. And then you have, you know, to add more complexity, you have this reliability factor that we talked about in our credibility assessment talk that you and I did a couple of years ago,

[00:01:52] where someone truly believes something happened, that they believe their narrative. I always talk about their narrative and they truly believe their narrative. So they're not bringing it forth in bad faith. They're not bringing it forth in a false allegation. They actually truly believe it. But for this, what the courts call a complex admixture of factors that they are not reliable in their belief. And so it's really important when we come to these findings.

[00:02:21] As I said, if we come to a findings unfounded, it doesn't mean it's been brought forth in bad faith. However, if it is brought forth in bad faith, we will sometimes identify that. And then that person usually becomes the respondent of an allegation that they brought forth, a complaint in bad faith. And then they need to be provided the same rights and procedural fairness that a respondent does.

[00:02:43] You mentioned, well, four different words, vexatious, bad faith, false and unfounded. Have you already clarified the difference between those? And if not, could you just go ahead and... I'll attempt to describe the difference between vexatious and bad faith, which is more legal terms. They're kind of legal concepts that you see in administrative law.

[00:03:10] So vexatiousness, as an example, could be that someone is using every avenue to tell the story that they believe, their narrative that they believe. But they don't like the findings of a workplace investigation. So they make a WCB complaint or they make a human rights complaint or they do a lawsuit or they grieve because they don't like the findings and it's continual. And so because they believe the narrative, they believe whatever the narrative is, right?

[00:03:39] True or not, it doesn't matter. They believe their narrative. Bad faith is that they know their narrative is false and they're bringing it forward anyway, right? So their motive could be, you know, revenge, you know, that type of thing, or they're trying to harm somebody's reputation. And so it has been brought forth in bad faith. So bad faith usually relates to the motive of bringing something forward. And vexatiousness usually relates to the impact of the systems that they continue to.

[00:04:09] They're not happy with any findings. That doesn't go their way. Why don't you just call bad faith what it is instead of just a false allegation? One of the main reasons is that it is very, very difficult to discern someone's motive, right? We can infer motive based on the evidence, but it's very difficult to discern. So we do not come out and say someone was lying, that we found someone was lying.

[00:04:35] We might say in a credibility assessment that we did not find them to be fully honest, right? Because once again, that's that nuance. And as soon as you attack and say someone's lying, of course, you know, only they know if they're lying, right? The evidence doesn't support what they said happened, but only they know if they're lying. I can't tell if they're lying.

[00:04:57] And this whole idea of discerning lying and, you know, becoming a human lie detector, which is a whole other conversation, which is just not based on science. So we look at credibility and we just basically say we did not find them to be reliable or we did not find them to be completely honest. So counter allegations. This comes up a lot where, you know, there's an initial allegation against a respondent and then the respondent comes up and says,

[00:05:27] no, I'm the one who's, you know, being harmed here, who has been harmed. Yeah. And in fact, this other person is, should be the respondent. How do you handle those? Yeah. And they're not that uncommon. So again, when you think about a harassment complaint, right, usually, I mean, it doesn't start from zero to 60. There's usually some animosity building up, right, towards the interpersonal interactions, right? Conflict, you know, those types of things.

[00:05:56] I mean, reasonable conflict, we all reasonably conflict. And, you know, we have to learn how to navigate reasonable conflict. But when people personalize it and they start to develop these real levels of contempt for each other and, dare I say, hatred. I mean, we've seen some pretty egregious things. And so what happens is that that's usually mutual.

[00:06:17] And so if I'm engaging in harassing behavior and someone's responding back and they're gossiping about me or they're yelling at me or those types of things, sometimes the behavior is both, right? That there is actually a counter allegation. And we come to a finding where, yes, someone engaged in this behavior. That was a breach of the policy. And then, but this person engaged in this behavior is a breach of policy. We also have to be discerning, right?

[00:06:43] Sometimes people will use counter allegations in terms of retaliation, right? So they're retaliating against the complainant for bringing it forth. So now they're going to make their counter allegation. So we really have to look at the evidence. We get rid of some of the noise. And we basically look at the facts. We determine who's more credible on one or the other.

[00:07:05] And we have come to findings where maybe both have engaged in, and we'll call it harassment or a breach of their respect in the workplace policies. You know, and so they're not uncommon. They, you know, we approach the interviews where, okay, I'm approaching you as a complainant now as I'm approaching you as a respondent because we give you an opportunity to respond. We try to sift out all the noise and then be able to come to a finding. Mm-hmm. Does it matter who started it?

[00:07:34] People will say, well, they started it. So then I had to, you know, protect myself. Right. And that could be a mitigating factor. Oh, okay. So remember those mitigating factors, aggravating factors, right? We do generally see one antagonist in these counter allegations where it seems that this person, you know, one person over the other is actually being, you know, engaging in more egregious behavior.

[00:07:59] Or like I said, maybe the counter allegation is a false allegation or is a bad faith, you know, making a counter allegation. I've seen many people say, well, maybe I should launch my own complaint about I'm being harassed. They actually use our investigative process by having to respond to an investigation. That's harassment in itself. And again, you know, people have their own narrative. I always say that people's narrative is something that we have to listen carefully for.

[00:08:28] They will not usually be knocked off their narrative. They've convinced themselves in their own mind that this is what's going on. Mm-hmm. Something that comes up a lot of a lot is people on the channel and the comments on that episode, again, is people say that the investigation itself is harassment. Right. You just referred to this.

[00:08:49] How can an HR professional know if the investigation they've been asked to do or they're starting to get involved in is actually harassment? Well, I mean, it has to be conducted properly, fairly, thoroughly, with respect. Right. I mean, that's one of the those are the big key red flag factors.

[00:09:10] If it's not done properly, fairly, thoroughly, following procedural fairness, giving someone an opportunity to respond and done with respect and dignity, then that's where there is a risk. They say, well, this is now becoming a form of harassment. And inevitably, if the policy says that there has to be an investigation, a thorough investigation is going to be conducted, that it's going to be conducted thoroughly, fairly and properly, then you can't argue that it's harassment. It's just you're following policy. Right.

[00:09:40] Like the HR professional internally, certainly they should not have a personal attachment to the parties. They should not have a personal attachment to the outcomes because that's a big red flag in terms of bias and apprehension of bias. So, again, removing the apprehension of bias can go a long way to mitigating that narrative that this is harassment. HR is out to get me. HR is only working for leadership and they're not unbiased. Yeah. Well, and that can happen. Yeah.

[00:10:10] But by removing that, right, we can, you know, going external third party or providing it to maybe an HR professional in a different department. If you're big enough, those types of things, you can mitigate those risks. You mentioned in the pre-conversation that it's important for employers to have policy around bad faith allegations. So, two questions. Why is it important and what would such a policy contain?

[00:10:36] Well, it's important because if you're going to hold people to account to their behavior and there's sufficient evidence to suggest that someone brought something forth in bad faith, then clearly you now need to hold them to account for that behavior because it could have some really detrimental consequences. I'll give you an example of one case where it was two women that were discovered to have colluded to make a complaint that a male colleague was engaging in sexual harassment.

[00:11:05] And the evidence started to unravel very quickly, particularly when the respondent of the allegations showed our investigator a video with one of the complainants sending him a video when she had a few drinks at her birthday party and basically said to him, I have a fire in my pants and only you can put it out. I can't wait to see you next Tuesday when their shift began. And then she makes a complaint of sexual harassment against him.

[00:11:33] There was other evidence that was clear that this was a collusion and it was brought forth in bad faith. Thankfully, the organization did have good policy on bad faith to basically say if something is brought forth in bad faith, it will be actually launching an investigation into that and follow the same process, which we did. We basically now they became the respondents of a bad faith complaint and we give them the opportunity to respond.

[00:12:00] And they were eventually disciplined for the bad faith complaint. Lying is always serious in a workplace, whether you've got a policy on it or not. And I know we don't call it lying per se, but anyway, deliberately misleading your leaders and the organization is a very serious employment behavior that undermines the health of the employment relationship.

[00:12:28] Why can't we just take action independent of a policy around the allegations? Oh, I believe you absolutely can. I mean, again, going back to the overall employment contract, right? It's, you know, the courts have said that, you know, the trust relationship is critical to continuation of employment. And so there's usually a catch-all in policy.

[00:12:51] And even if it doesn't breach policy, you know, I mean, you could arguably say that, you know, we believe you acted dishonestly and we are going to be giving you an opportunity to respond to the evidence that shows you acted dishonestly. And then make decisions, you know, discipline decisions coming from there. It's just, I think it's more, I think it's more robust if people understand that there actually is policy against a bad faith complaint.

[00:13:21] Yeah, it's cleaner and it certainly gives decision makers something much more objective to hang their hat on. Right. Uh, you already referred, well, that example you just gave around two women alleging sexual harassment.

[00:13:40] Um, how are you finding doing sexual harassment, you know, investigations like that, where it's actually a false allegation in the area era of Me Too and Believe Her? Or, like, is that making those investigations more difficult and higher profile and higher risk? Maybe higher risk.

[00:14:04] They're not, they're not more difficult because once again, if you really, if you're really comfortable in what you need to do and get rid of some of the noise, I would call that noise actually. That's, you know, kind of more cultural noise surrounding the issue of sexual harassment in the workplace. I'll give you an example that, that it just, um, you know, it kind of, uh, the, the Me Too movement and the hashtag I believe her. Well, we do many investigations where it's male on male allegations of sexual harassment. It's female on female allegations, sexual harassment.

[00:14:33] It's female on male. Um, the majority is still male towards female. There's still the, obviously that's still the majority of our cases. Um, we just, you know, that's, that's, that's, you know, bias noise. Basically, we cannot allow ourselves to be biased. Now, what we do need to be is discerning.

[00:14:50] And we also need to understand that let's say in the, in the area of, uh, criminal allegations of sexual assault, um, around the world, the statistics are similar in that there are five to 7% of cases that are provably false, that they were brought forth in a, uh, in a false, false manner. Um, and so, but that's still considerably low. Mm-hmm.

[00:15:13] The investigator needs to maintain an open mind to all possibilities and follow the evidence to determine the probabilities. So there is a possibility that it is a false allegation. We have to keep an open mind to that. Uh, if we close our mind to that, then we are in fact closed minded and our findings are likely to be challenged. There was a case out of, uh, out of, uh, the federal court of Canada called the Schoen case.

[00:15:40] And in that particular case, it was identified by the federal court of Canada that the investigator had a closed mind. The investigator was not willing to consider other evidence that impugned the, uh, the allegations, uh, made against the, uh, uh, against the respondent. So we have to keep an open mind to all possibilities, narrow down to probabilities based on the evidence and not let societal noise and cultural issues noise.

[00:16:06] And there's other cultural issues going on right now with respect to LGBTQT rights, with respect to religion, with respect to human rights. Um, and some of that is just noise. It's, this is probably though, where the whole term he said, she said even came from where it's, she said. Yeah, well, that's a, that's a term that's actually been used.

[00:16:26] It was actually used back in like the 17th century, 18th century, like in, in, you know, in common law, uh, where, you know, with one person's, you know, word against the other. And up until the 1970s or 80s, I believe the courts would not even consider, uh, an, um, a charge unless there was corroborating evidence. In other words, it was more than just a person's word. Um, so, but again, we go back to the, uh, conducting of credibility assessments.

[00:16:52] We do many investigations on the quote he said, she said, um, with minimal corroborating evidence. And we're still able to come to a finding based on who's more credible. Uh-huh. Okay. All right. Um, that's all the questions for today. Super enlightening. Where can someone find you in Veritas? Well, you can, uh, just, um, type in Veritas Solutions, um, and you'll find our websites and, uh, lots of ways to contact us, whether by phone or whether by just clicking, you know, I want more information about your training.

[00:17:21] Uh, we do training in this. We do a lot of workplace investigations training. Clearly, we do a lot of investigations. We're doing three or four hundred a year. Um, and we do a lot of proactive, um, consulting, um, culture assessments and, uh, post-investigation restoration, stuff like that. So, um, have a look at our website. And we have a great team of professionals. And, um, yeah, that's where you can find us. Okay. All right. We'll put links to that in the show notes. Well, thanks, Bob. That was great.

[00:17:49] I am going to refer a lot of people who are commenting in this vein to this episode once published. Um, I hope you out there found it informative. Bob and I have done a number of episodes together, but the most recent one was just on the basics of workplace investigations. And a link to that's right here. Or you can find it in the list of episodes. Thanks for watching out there. We'll see you next time. 엉