Investigating possible misconduct can be fraught with difficulties. Timely and effective legal advice is crucial. This section outlines steps for the employer to take when investigating alleged misconduct. It is a brief outline only and is not a substitute for legal advice.
This could be the aftermath of a heated argument, an accident, the discovery of an incriminating document or the receipt of a customer complaint. Faced with such a situation, an employer should:
- Remain calm;
- Ensure staff and the public are safe;
- Preserve the evidence (for example, remove computer equipment);
- Get legal advice about reporting the matter if required (for example, to HR, Police, WorkSafe NZ);
- Seek legal advice if the incident might warrant disciplinary action against an employee.
Phase one—the investigation
The employer must gather facts to determine what occurred. This may include analysing documents or data and interviewing witnesses. It is also essential to check the employment agreement for relevant provisions and procedures.
The employer must conduct the investigation in good faith and in accordance with natural justice. This includes not predetermining the outcome or leaping to conclusions.
Sometimes the employer would be better to engage an independent person to undertake the investigation.
The disciplinary process
Phase two—the allegation
If the investigation reveals possible misconduct or serious misconduct, the employer will need to put the allegation to the employee in a clear and precise manner. The employee must be told:
- Of the details of the allegation;
- If the allegation were proved, might it be considered misconduct or serious misconduct?;
- Of the sanctions available if the employer finds there was misconduct or serious misconduct;
- Of the employee’s rights during the investigation.
Phase three—the invitation
This is usually done by letter, setting out the allegations and inviting the employee to a meeting where the employee and their representative will hear and respond to the allegation.
The employee must be given all relevant information, including witness notes/statements.
Phase four—meeting to discuss the allegation
During the meeting the allegation must be put to the employee for his/her response. The employer is obliged to listen to the response with an open mind.
It can be useful to have your legal adviser at this meeting because sometimes the participants struggle to communicate with each other. For example, the employee may be anxious and stressed and their discomfort could be misinterpreted as guilt.
After hearing the employee’s response, the employer must decide if the allegation has been proved to their satisfaction, and, if necessary, decide on any proposed sanction.
Phase five—meeting to discuss proposed sanction
The factors the employer needs to consider before deciding on the appropriate response to a proven allegation include:
- Does the employee have insight into their actions and their effect on co-workers?;
- Was dishonesty or deception involved?;
- Was the employee adequately trained for the work?;
- Has the employer’s trust and confidence in the employee been affected by the employee’s conduct?
Having considered all necessary matters, the employer must then seek feedback from the employee on the proposed sanction, and listen to any matters the employee raises that could influence that decision.
Phase six—the final decision
When making the final decision on sanctions, the employer should consider:
- Mitigating factors;
- Employee’s personal circumstances;
- Severity of the offence;
- Proportionality and consistency.
Sanctions may include:
- The issuing of warnings;
- Dismissal (in the case of serious misconduct).
What Bartlett Law can do for you
We are specialists in workplace law. We provide sound, pragmatic advice. We can assist at all stages of the investigative and disciplinary process, including:
- Advising on the best way to conduct an investigation
- Developing a comprehensive investigation plan
- Conducting independent investigations
- Advice on suspending the employee during the investigations
- Drafting correspondence for the investigation
- Attending disciplinary and investigatory meetings
- Advising on sanctions
Contact us for more information.