6 Chapter 6: Evidence

Gathering good evidence is the purpose of any investigation. It is the quality of evidence collected in an investigation that allows an investigator to make a prudent and wise conclusion. There are many different types of evidence that an investigator can collect and it is important that an investigator be able to separate key pieces of evidence from extraneous evidence.

What is Evidence?

Evidence

Cambridge dictionary defines evidence as “anything that helps to prove that something is or is not true”^[1]

When we hear the term evidence, we tend to think of what we have seen on television and in movies – physical evidence picked up by hands in latex gloves and placed in clear plastic bags. This is not necessarily the case in a workplace investigation; the most pertinent evidence in a workplace investigation will most often be the oral evidence given by the involved parties or witnesses. Sometimes there will be documentary evidence such as records, files, documents, and occasionally physical evidence like video recordings.

Evidence may take various forms:

1. Testimony from interviews
2. Documents- files, records, documents, emails
3. Physical evidence e.g.- social media post screen shots, ruined product, video recording

Gathering Evidence- Forms of Evidence

Some evidence will be gathered prior to the investigative interviews, while the rest will be gathered throughout the investigation process. There will be some pieces of evidence such as policies, procedures, legislation, or written complaints that are available to the investigator prior to the investigation. The investigator will utilize these pieces of evidence in their decision making.

However, this is preliminary documentary evidence, and it may only give part of the picture. Oral testimonial evidence obtained through interviews may help to round out the picture of what occurred. Interviews may lead the investigator to new pieces of evidence that were previously not known prior to the interviews. An interview may lead the investigator to additional documentary or physical evidence that is in the possession of one of the parties.

When collecting evidence, it may be difficult to know initially if something is relevant and important. It is easier to collect the evidence and then filter it later for relevance and credibility. This can be challenging. The investigator must ask themselves, does this piece of evidence help answer who, what, where, when or why? Can this evidence be trusted? If it does not answer one or more of the 5 W questions or cannot be trusted, then it is likely not pertinent to the investigation. However, an investigator should not completely disregard evidence that does not at first seem to relate. As the investigation unfolds new information may shed light on a piece of evidence that previously seemed irrelevant.

Rules of Evidence

In Alberta there is legislation called the Alberta Evidence Act. This act is relevant to legal proceedings and the evidence collected for the purposes of court actions, but it provides a good guide for standard acceptable practices related to the collection of evidence for workplace investigations.

In addition to the Alberta Evidence Act, some employers may have policies or procedures for collecting evidence that need to be followed. An investigator must be mindful of privacy policies in collecting evidence to ensure that they do not violate an employee’s privacy rights. This is especially true in collecting evidence relating to medical conditions or health information. Most workplaces will maintain separate medical information files from employee records – access to an employee record is not always guaranteed and access to a medical information file is seldom granted.

“In unionized workplaces, many collective agreements also contain limits on the types of evidence and documents that can be used in an investigation to support the imposition of discipline and any subsequent arbitration. Typically, such collective agreements prevent an employer from relying on allegations or documents in an employee’s personnel file, if the employee was not made aware of the allegations or documents shortly after the employer became aware of the allegations, or at the time the documents were added to the file.”^[2] What this means is that an employee needs to be aware of the allegations made and any documents used as evidence.

There are two basic types of evidence – direct evidence and circumstantial evidence:

• Direct Evidence– Direct evidence supports the truth of an assertion without relying on additional pieces of evidence to show an action or inaction occurred. This evidence can stand alone to establish something as fact. Examples: Video surveillance that captures an employee stealing money from a cash register or an eyewitness who observed an employee punch their supervisor.

       Direct evidence is typically the strongest type of evidence.

• Circumstantial evidence– This is evidence that supports a premise, theory or assertion. If one looks at the circumstantial evidence, they can draw a reasonable conclusion as to what took place. Example: A witness sees an employee leave the front office stuffing something into their coat pocket, and moments later someone notices that money has been taken from the cash register in the front office where the employee was seen exiting. The witness did not see the employee take the money from the cash register, but one can reasonably infer what has taken place based upon the set of circumstantial evidence.^[3]

Securing evidence- Documentary or Physical

Although not as common as testimonial evidence, occasionally there is documentary or physical evidence that it pertinent to an investigation. This can be anything from printouts of social media posts, photographs of text messages, computer files or spoiled/damaged product. All of this evidence needs to be secured in some fashion to be referred to later. The question is how and where does one keep these types of evidence.

If an investigator is in receipt of either documentary or physical evidence, it is important that the items be placed in a secure location with the following information recorded:

• Where, when and who found the evidence
• Description and condition of the evidence
• Who collected the evidence
• Date and time it was secured

Physical evidence should be placed in an envelope/plastic bag sealed with tape and the investigator should initial, date and time the seal of the evidence. If the evidence does not fit in an envelope or plastic bag then the investigator should place their initials discreetly somewhere on the item and record the date, and time it was secured.

For electronic evidence, a copy should be made and stored on an external memory or other device. Screen shots taken should be printed or secured on an external memory device.

For documentary evidence the investigator should secure the original document rather than a photocopy or picture if possible. An investigator will also want to show a chain of possession of evidence, which means that the detail is recorded of where the evidence was at all times. For example, if the investigator becomes aware of documentation of a financial transaction where the employee being investigated signed the document, they should ensure that once this document comes to their knowledge that they can track who had the document and subsequently what happened to the document. It would be detrimental to the investigation to lose the document for a few days and then have it suddenly re-appear on a desk.

Sometimes during an interview, a witness or party to the investigation may bring documentary evidence with them or create evidence in the interview. If any interviewee creates a drawing, diagram, or sketch during the interview it should be considered evidence and properly stored. The investigator should make note of what was created in the interview for future reference. If the investigator is recording the interview, they may want to state what was created so that the activity is captured in the audio recording.

As well, after an investigative interview there will be the investigators notes and/or recording. Notes from interviews should also be stored in a secure location. Some investigators will use a bound book, or they number and initial all loose-leaf pages to demonstrate that the notes have not been tampered with. The goal of the investigation is to be as transparent with evidence as possible. Employees, the courts, unions and arbitrators want to see original notes. They do not want to see pages torn from notebooks, items covered in white-out or erased. If the investigator needs to erase something they are better to strike through the entry rather than delete or white out physical notes so that it is evident what was stricken. Some investigators will even go so far as to initial any strike throughs on a page.

Who Collects Evidence in a Workplace Investigation?

An investigator may be provided pieces of evidence from the employer, for example, the company’s investigation policy or discrimination and harassment policy. Investigators may be given access to employee file information such as performance reviews, previous discipline records, work schedules etc. They could be permitted access to limited medical information like accommodation requirements or requests (if the information is pertinent to the investigation). An investigator may also be given electronic files, photographs, video evidence or other pieces of physical evidence from either a party to the investigation or the employer.

So how does the employer go about getting evidence to give to the investigator, should the investigator go searching around on their own? It will depend on if the investigator is an external third party or part of the human resources department and on the type of investigation. For instance, it is not uncommon for third party forensic accountants be brought in to investigate allegations fraud, theft, or embezzlement. In those cases, the external investigator may be given full access to an organization’s computer system and accounting records.

In other cases, it may not be necessary or prudent to give an external third-party investigator unlimited access to company information. The external investigator may be given documentary and physical evidence from the employer, or the parties involved in the investigation, but will not actively search for evidence on their own. In this case, if an external investigator identifies a gap in the evidence that they require to decide whether misconduct has occurred, they will need to ask for assistance from the employer, union or party to the investigation to find the needed evidence.

When the investigator is a member of the human resources team of the employer, they may have a much better idea of where to find evidence than an outside third party. They might seek out information on their own.

Employers (supervisors and managers) and HR investigators may be unsure what evidence they can obtain or how far they can go to obtain evidence. Some common sources of evidence are discussed below along with the limitations that employers have on obtaining that evidence.

1. Searching Individuals

Employers may feel that they have the right to search employees’ bags, purses or clothing when they suspect theft or other transgressions. If an employer has a reasonable suspicion that an employee has stolen something they should refrain from searching the employee unless permission has specifically been given to the employer by the employee. Basically, it is not recommended to touch an employee or their personal belongings unless permission is granted.

An employer can ask an employee to empty their purse, bag, pockets, locker, desk, etc. and an employee may comply. If an employee refuses an employer cannot search them unless the employee has given consent previously by signing off on a policy that permits such searches. Even in those cases the search has to be confined to a situation where there is a good reason to search not just a suspicion that something has been stolen. If an employee has not given consent to be searched or have their belongings searched….. well, the employer may be out of luck. If they suspect that there is theft, they can contact the authorities.

Powers of search are very limited in Canada and fall under the Canadian Chart of Rights and Freedoms section 8. “Everyone has the right to be secure against unreasonable search or seizure.”^[4]

Under the Supreme Court of Canada there are two grounds for a citizen to conduct a reasonable search.

1. After a citizen’s arrest to search for weapons or items that could be used as weapons. As well to look for items or tools which would aid in escape. As an HR professional you will not be conducting a citizen’s arrest so you will not be able to use this as a ground in which to search someone.

2. The second way in which to conduct a lawful search is to seek consent from the subject. Consent to be searched can be gained by asking the individual if they are willing to be searched or have something they are carrying be searched.^[5]

In short, HR is not the police, security guards or CSIS and should leave searching people and belongings to the appropriate authorities.

2. Searching Electronic Devices

When we discuss searching electronic devices in this section, the discussion is focused only on “company” owned electronic devices. The employer has no right to search personal electronic devices such as personal cell phones.

Even though electronic equipment used by an employee may be owned by the company the employer needs to tread carefully if considering a search. If the employer has permitted employees to utilize company electronic devices for personal use, then it is not simply a matter of looking at the company cell phone assigned to a particular employee. The Supreme Court has again deemed that employees have a reasonable right to privacy, even for electronic devices that are the property of the company where personal use is permitted or reasonably expected.

An employer does not have unfettered rights to look at electronic devices that employees use, even if the company owns them. Workplace policies and practices may diminish an individuals’ expectation of privacy in a work computer, but these sorts of operational realities do not in themselves remove the expectation entirely.^[6]

What this means is that an employer would need to have a compelling reason to search an employee’s electronic device. There would need to be a strong suspicion of wrongdoing, not just a hunch and, not simply a “fishing expedition.” This standard is even higher if an employee is suspected of illegal activity. If an employer thinks an employee is doing something illegal and there may be computer evidence that could be used in court, they should immediately contact the police.

If the employer randomly searches someone’s computer simply out of curiosity or because they hope to find something, it would be an invasion of the employee’s personal privacy and the employer could be sued for what is called “intrusion upon seclusion”. This applies to significant and deliberate acts that violate the person’s privacy.

The Ontario Court of Appeal in the case of Jones v Tsige stated the following:

“The key features of this cause [ suing someone for intrusion upon seclusion] are

1. The conduct must be intentional, which I would include reckless
2. The employer must have invaded, without lawful justification, the employee’s private affairs or concerns.
3. That a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.” ^[7]

3. Utilizing Video Evidence

Video evidence has been used successfully in workplace investigations under specific circumstances. The Office of the Privacy Commissioner considers covert video surveillance to be an extremely invasive form of technology and thus has strong guidance surrounding when covert video surveillance can be used.

Video evidence is considered to be “covert” when the person is not aware that they are being recorded. As such it can only be used in certain circumstances:

1. Under PIPEDA, an organization may collect, use or disclose personal information only for purposes that a reasonable person would consider appropriate in the circumstances.^[8]
2. The organization must have exhausted all other less intrusive means of collecting the evidence. This means that if an employee is suspected of defrauding the benefit plan by “exaggerating a disability or illness” the employer must first try to obtain the medical evidence through the employee and their physician, or an independent medical examination agreed to by the employee, before attempting to obtain video evidence.
3. There must be a demonstrable evidentiary need for the collection of this evidence. It is not enough for the company to simply be suspicious or think someone is doing something wrong. There must be more compelling grounds to believe that video evidence is required. Office gossip, for example, is not sufficient as a means of compelling grounds.
4. The video evidence collected must relate to a legitimate business purpose and objective.
5. Video evidence should not include audio.
6. The loss of privacy must be proportional to the benefit gained by the company. It would not be reasonable to have video surveillance to catch the person stealing mints off of the front reception desk. It may be reasonable to use video surveillance if the employer has exhausted all other means of obtaining information about an employee’s medical limitations and the employee lingers on disability leave, when under normal conditions a person would have returned from leave.
7. In order to collect information through video surveillance without someone’s consent, the organization must be reasonably satisfied that:
   • Collection with the knowledge and consent of the individual would compromise the availability or accuracy of the information
   • The collection is reasonable for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or Alberta.
8. In the employment context, an organization should have evidence that the employment relationship of trust has been broken BEFORE conducting covert video surveillance. Organizations cannot simply rely on rumor, suspicion, a hunch or a guess; the organization must have evidence to justify the surveillance.
9. Organizations should limit the duration and scope of surveillance to reasonably achieve their purposes. This means that an employer cannot put the person on video surveillance for the whole day if there is evidence that misconduct occurs only during the lunch hour.
10. Employers MUST NOT record individuals in places where they have a reasonable expectation of privacy i.e. inside the bathroom, locker room, inside their home, in their fenced backyard.
11. The circumstances surrounding the use of video surveillance should be documented i.e. Who approved it, how often is it used by the company, is there a policy as to when it is used.^[9]

Workplace Security Camera Video

If an employer is going to use video surveillance regularly in their workplace, they must remember to advise employees of the surveillance, state the purpose and post a notification to advise employees that they are under surveillance. The purpose of the video must also be reasonable e.g. theft prevention at the front counter, or security of personnel.An employer may not use video surveillance that “just happens to catch something,” if that was not the designated purpose of the video.For example, if an employer has video surveillance at the back door or their business and notifies the employees that the video is simply to identify when deliveries arrive, but the camera catches an employee smoking marijuana on their coffee break (which is a violation of company policy), the employer may not use the video evidence in the discipline of the employee because that was not the stated purpose of the video surveillance.4. Utilizing Audio Evidence

Audio evidence is audio a recording(s) that is/are made by the employer, a party to the investigation or investigator. If someone gives their consent to be recorded, then the audio evidence may be used by the investigator. However, if someone has not given their consent, or was not asked for their consent then the matter may be more complicated.

The Criminal Code of Canada in section 184 states that it is an offence to willfully intercept the private communication of an individual.^[10] Thus, you may not covertly record a private conversation, or a conversation where the parties have a reasonable expectation of not being overheard. What this means is that an employer may not record the conversation between employees, or between a union representative and an employee or any two people if the recorder is not involved in the conversation.

Section 2 of the Criminal Code identifies two circumstances where a conversation may be recorded:

1. When the recorder has the consent of the parties involved in the conversation.
2. If an individual is part of the conversation, meaning that they are one of the parties engaging in the conversation (not simply standing beside parties in the conversation, or a silent participant). The recorder needs to be the person who originates the conversation or the person who the other party intended to engage in conversation.^[11]

If the person recording the conversation is a party to the conversation, they do not need to disclose that they are recording the conversation. Consent is only required by one party to the conversation and that can be the recorder.

5. Utilizing GPS on Company Vehicles

For some jobs employees drive a “company vehicle” such as work for municipalities, delivery services, construction companies and a variety of other organizations. Often employers will use Global Positioning System (GPS) to track the whereabouts of company vehicles. This is particularly useful business tool for school or transit buses, municipal vehicles and courier vans, e.g. tracking of vehicles to optimize delivery or services. Vehicle tracking may be used as a performance measurement or for safety monitoring. Other times employers have placed GPS locating devices on their vehicles to deter theft and to facilitate easy recovery of the vehicle if it is indeed stolen.

Alberta does not have vast case law to guide the advice related to GPS tracking, but the following are best practices. If a company is placing GPS on a company vehicle for performance measurement purposes, it needs to advise the employee. If the company is going to be using GPS monitoring as part of a suite of information for gauging and evaluating efficiency of work, an employee must be advised of such in advance. If GPS information will be used to detect misconduct the company must have reasonable grounds to suspect there is misconduct and use the GPS to confirm it, rather than simply snooping hoping to find something to support a hunch.

The Office of the Privacy Commissioner of Canada has stated “Employers must find ways to weed out bad employees without shattering the dignity and privacy right of the good employees – who make up the vast majority of the workforce.”^[12]