Practice Pointer – Judging Credibility In The Workplace
Volume 17, Issue 5
March 21, 2018
Managers, Human Resources personnel and in-house counsel are often called upon to determine whether an employee is being truthful as they address discipline matters and investigate complaints in the workplace. Credibility determinations are important, but often difficult to make. We can find some great practice pointers for making credibility determinations in the standards used by arbitrators to judge witness credibility.
- Personal knowledge: Ask yourself whether this employee, supervisor or manager (the “witness”) has personal knowledge of the event or act in question. If the witness is restating something he heard from someone else, he does not have personal knowledge of the event; he only has personal knowledge of what that person told him (which may be important if the issue is what did that person say). Personal knowledge requires that the witness saw or heard the act or event in question himself.
- Consistency/inconsistency/reliability: It is important to consider whether this witness is reliable. Does he remember the details well or is “everything fuzzy?” Did he create any documentation (a note, an email or text) about what he saw or heard? Be sure to ask yourself whether the witness’ statements about this matter have been consistent or has he changed or added information over time?
- Confirmation or contradiction: It is important to determine whether a witness’ statement is confirmed by other evidence. Do others agree with his version of events? Do you have evidence from documents or video that corroborates his statement? Or, does the other evidence contradict the witness’ statement?
- Reasonableness: Ask yourself whether the witness’ statement makes sense. Is it reasonable? Does it pass “the smell test?”
- Bias or motive: Consider whether this witness has a stake in the outcome of this issue. Does he have a reason to be untruthful or hide information? Is he biased or hostile against someone else involved?
- Demeanor: What was the witness’ demeanor like when you interviewed him? Did he make eye contact with you? Was he forthcoming? Did he try to avoid an interview or meeting with you?
- Character: In your experience with this witness, what is his character for honesty and veracity? Is he scrupulously honest? Does he tend to exaggerate? Has he been untruthful or less than forthcoming in the past?
This analysis is certainly not fool-proof. However, one or more of these factors will often point you in the right direction when you are seeking to make these important credibility determinations. Moreover, by giving this analysis some careful thought and by documenting your deliberations, you are showing diligence and reasonableness – key factors that will help your employer defend any challenge to the action you ultimately take.
KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.