He said, she said – what do I say?

Employment investigations can be daunting. You’re having to speak with a distressed complainant, a defiant and/or upset respondent, and several witnesses who insist they’re telling the truth – and they’re all describing slightly different versions of the same event. There is no CCTV footage or any other source or evidence that can point you in the right direction. So how on earth do you reconcile these varying accounts and come up with a sensible and reasonable factual finding?

Analysing evidence and establishing the facts based on the balance of probabilities is no easy task, and it can be greatly hindered by conflicting accounts. Luckily, credibility is a very active subject in the courts, and over the years we have received helpful commentary and factors to consider when it comes to assessing credibility. These matters may not be straightforward, but it helps to have a compass.

Deng v Zheng [2022] NZSC 76

  • Most of the usual ways that judges assess credibility remain available to investigators: consistency of a narrative over time and with other evidence (particularly contemporaneous documents) and general plausibility; or, as the Court of Appeal put it, by focusing “on the substance of the parties’ arrangements as revealed by their conduct over time”.
  • The parties’ social and cultural framework may be of significance – caution should be taken in applying general ‘rules of thumb’ to parties who do not share the same cultural background. In other words, any one individual’s interpretation of events will be coloured by their cultural understanding.

Maheno v Carrington Resort Jade LP [2022] NZERA 635

  • The Employment Relations Authority (Authority) considered someone who rigidly held to his stated position, regardless of evidence to the contrary, undermined his credibility by doing so.
  • The Authority preferred Ms Maheno’s evidence regarding the material conflicts about two meetings in question because they were significant events that stuck in her mind, and had seriously adverse consequences for her, so she had a good recall of them. That was compared to the respondent’s witnesses, who were unclear about basic details such as how many meetings they attended, who was at the meetings, how long each meeting lasted, what was discussed, whether notes were taken and if so by who. The meetings were also not personally significant for the witnesses, in the way they were to Ms Maheno.

D v E Ltd  [2013] NZERA 338

  • The Authority Member cited a number of previous Authority cases, and summarised factors to consider when assessing credibility, including:
    • inconsistencies and contradictions;
    • prevarication (i.e. not giving direct answers, in an attempt to obscure the truth);
    • concessions being made where they are due, but not to the extent that they substantially change the tenor of the witness’ evidence;
    • clarity and reliability of recollection; and
    • again, consistency with other evidence including contemporaneous documentary evidence, and degree of accord with reality or common sense.

In light of this guidance, some general questions you may wish to ask yourself include:

  • Has this individual’s narrative remained consistent throughout?
  • Was it brought to light promptly?
  • Did the complainant report it to anyone else (bearing in mind there are legitimate reasons why complainants hold back on reporting their concerns)?
  • Has the person otherwise lied or misled?
  • Does it marry up to how someone might act in such a situation?
  • Is there a motive for misrepresenting the narrative?
  • Are there any cultural considerations I need to take into account?

Investigations are a constantly developing area in employment law. If you would like our advice or assistance with any investigations, please get in touch with our specialist Employment Law Team at Lane Neave.

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