Workplace disciplinary investigation – get it right!

Here’s the scene.  You are faced with an employee issue that looks like misconduct and you must conduct a formal investigation.  [Note: make sure that you act within the law and refer to local conditions/regulations]

You are fully aware that your investigation must be thorough, fair and unbiased.  Use this outlined method, so that you don’t miss anything.

Event arises: an employee allegedly acts contrary to your company policies and procedures.

Gather evidence confidentially– you don’t want information surrounding the issue to be altered or even destroyed. You also need to protect the people involved, including the person who is subject of the allegations.

You need to establish circumstances and establish  time and date/s

  • exactly what happened
  • who else has allegedly committed the issue
  • who witnessed the issue
  • any potential mitigation
  • any control limitations that should have been in place.

Speak to the person at the centre of the issue.  Warn them that it could be viewed as misconduct which may result in disciplinary action.

Speak to the person raising the issue to sort out facts from conjecture.

Identify and talk to everyone involved on an individual basis.  However, be discrete and require them to keep it strictly confidential.

Gather witness statements. Do  you need to talk to more people or collect more data?

Gather any written or physical evidence.  (It might be computer records, copies of emails, attendance records, CCTV etc.).

Refer to any previous similar incidents

Has this individual been involved in an issue before?  Are there any patterns of behaviour?

Remain open minded.  However, keep your investigation only to the specific allegation.  Do not get side-tracked.

Review the evidence gathered during your investigation and identify patterns, corroborating evidence, particular circumstances:

  • Who?  Was it just one individual?  Have they been influenced by others?
  • What? Exactly what is the issue, what effect has it had upon other people or the company?  Is the issue potentially illegal, non-compliance, poor behaviour?  Has this broken your company policy?
  • Why has this happened (e.g. lax management, horseplay, criminal intent or what?)
  • When? Is it an isolated case or part of a series? How far back does it go?  Is there a sub-culture that “normalised” the situation?
  • How?  What controls are missing? Find out the circumstances and managerial attitudes. (may lead to mitigation).
  • Present your notes and other documentation in an unbiased and straight forward manner.  Both the disciplinary officer/s and the accused employee will use these notes.

Consider if any evidence could be malicious or vexatious? Watch out for exaggeration and over-dramatisation by witnesses. But could they be holding something back? (If so, find out why).

Decide on your action.  Is there a case to answer?

  • If no, contact the employee concerned.  Thank them for their cooperation but the issue will be closed without further action.
  • If yes, start your formal proceedings according to your disciplinary policy.  Do this swiftly whilst memories are fresh.

You should only be investigator or witness, or disciplinary chair: you cannot do all these roles for the same issue.  Different people should perform these roles to demonstrate fairness and keep bias to a minimum.  However, you can get help from an independent consultant or trade body if you do not have anyone suitable in your organisation.

Should you involve external authorities, such as the police, immigration control or tax authorities?  Yes, if you uncover something that is potentially illegal then you must do so, otherwise you may be seen as abetting a crime.  Of course, you will still keep this confidential. The authorities will conduct their own investigation and procedures.  Depending on circumstances, you may need to suspend your company proceedings to enable the external authority to act.  Get professional advice from your company legal counsel in such event.

Final Note: fortunately serious misconduct is rare, but even for minor misdemeanour it is worth following a process.  This will ensure that you do not miss anything. Keep matters confidential and demonstrate impartiality.

 


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