If an employer has been made aware of possible misconduct or serious misconduct they will need to investigate to decide how they should respond.  Examples of misconduct could include things like an employee putting themselves or others at risk (health and safety issues), bullying or harassing a co-worker or customer, discrimination, fraud, theft, dishonesty, fighting, swearing, drug or alcohol misuse, breaking any other terms of their employment agreement or not following the rules set out in the employment policies. 

Before making any final decisions, an employer is required to follow a fair process, including investigating whether the allegations raised against an employee can be substantiated (true).  “Investigating” means collecting information and facts about the allegation. 

What are the steps for a fair investigation?

  1. Decide whether there are grounds to investigate.  Is there really an issue?
  2. Take steps to prevent interference with the investigation (for instance tampering with evidence, or collusion between parties).  This could include collecting documents, preventing access to documents, files or emails, ceasing access to laptops or phones (if they are work property), and telling parties to keep the matter confidential. 
  3. Take interim measures to prevent further escalation of the issue (for instance you may want to suspend an employee who has been accused of unsafe practises at work, or you may wish to offer a victim of bullying or harassment garden leave, or different shifts, or allow them to work from home).  Before suspending an employee, the employer must have the power to do so (either under the employment agreement or because there is a health and safety issue).  An employer needs to carefully balance the rights of the alleged accuser and the alleged victim to avoid personal grievances.  This can be tricky to navigate if you have never had to do this before. 
  4. Inform the relevant employee what the allegation against them is and provide them with all the information you have about the allegation (including documents, footage, complaints, witness statements, etc.).
  5. Advise the employee that you will be investigating, and what the process will look like (interviews, checking records, etc.).  You should indicate timeframes for these steps, but also advise that things may need to change as you go, and that you will keep the employee up to date.
  6. Gather information by collecting evidence of what did or did not happen.  You could interview witnesses, review relevant material and so on.  Once you have collected all the relevant material, you need to provide this to the accused, so that they can comment on it first, before you make any final decisions. 
  7. Give the employee adequate time to digest the allegations, to consider the evidence, to get advice, and to prepare their response.  Give the employee an opportunity to explain their side of the story (with the support person or lawyer present).  This can take place in person, or in writing.  You should not make any decisions yet, but you should ask clarifying questions.  It may become necessary to go back to witnesses, or to collect further information, after you have heard from the accused. 
  8. Any new information should also be provided to the accused to comment on. 
  9. Once the investigation is complete, you need to consider all the evidence with an open mind, before making your decision.  If you decide that the allegations are true, you will need to decide if disciplinary action should be taken (for example a warning, a final warning, a demotion, further training and support, or termination of their employment – if serious enough).  The disciplinary action must be reasonable and proportionate to the wrongdoing.  Before reaching a decision on the appropriate penalty you must give the employee a reasonable opportunity to comment on the proposed outcome.

Should you use an external investigator?

Investigations can be time consuming and stressful.  Many hours of staff time and other resources may go into an investigation.  For this reason, some employers opt to use an external investigator. 

This can also be a helpful approach if the boss or someone in a high level position is the one accused, or if the allegations are serious or complicated.  Using an external investigator can help to keep the evidence gathering process neutral and balanced.

An external investigator will only collect evidence about what happened.  This usually is presented in a report to the decision maker.  The decision maker will then decide how to proceed, based on the facts found by the independent investigator. 

To read more about when you should consider using external investigators and the pros and cons of using one, click here.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

 

Jaenine Badenhorst

Associate Lawyer


Gender Equality
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