Investigating Employee Misconduct

4 September 2018 in Articles

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Employee misconduct investigation is quickly becoming more common in the workplace today as employers and managers seek to quickly resolve internal strife. However, the investigation of misconduct in the workplace remains a difficult task for employers. It is not in any employer’s interests to leave these issues unresolved as they can turn into very damaging long-term disputes, affect staff morale and increase stress in a workplace. The investigation is, therefore, a critical part of the process of identifying the relevant issues and obtaining the evidence required to effectively respond to these matters. There have recently been a number of cases in the Fair Work Commission (FWC) which give guidance to employers of the pitfalls to avoid. This article deals with the key issues.

The need to check the organisation’s policies

The first issue to consider is what the organisation’s policies state because it is critical that they are observed. For instance, are there specific procedures to be followed in the policies in relation to workplace investigations, grievance management, discrimination and harassment? Following the proper procedure means that the employees, management and the investigator are all working together and ensures fairness for employees protected from unfair dismissal.

Can you claim privilege?

It is a common misconception that having a lawyer run an employee misconduct investigation under privilege will ensure that any unanticipated information does not “get out”. The purpose of a misconduct investigation is not to take any particular position, it should be to discover the objective truth of what occurred. When an organisation undertakes a misconduct investigation, it is doing so to establish the facts and decide whether the alleged conduct occurred and, if so, what disciplinary action should be taken. The report should be able to be provided as evidence in any later review or proceedings. Withholding part or all of a report creates a risk of there being insufficient evidence to support the disciplinary action and can lead to claims of procedural unfairness.

Conduct the investigation promptly and follow the correct procedure

The organisation needs to make sure investigations leading to a termination of employment are conducted as soon as possible after the transgression occurs, or risk exposing themselves to an unfair dismissal case. So many unfair dismissal cases are successful not because the company has necessarily made the wrong decision in terminating an employee, but that the investigation or procedure leading up to the firing was not sufficient. In employee misconduct investigations, it is important to ensure that an employee has a reasonable opportunity to respond to the allegations against them and that the investigator is as impartial as possible. There are no set rules which need to be followed when conducting an internal investigation. The key is that it must be fair and objective. Naturally, the subject employee must be afforded the opportunity to take part and answer the allegations. Following the investigation, the employee must be given the opportunity to respond to allegations. The employee is entitled to know enough detail about the allegations to be able to provide a proper answer. The employee should be advised of the process and their rights under the process. Let the employee and the employee's representative know the ground rules from the outset, preferably in writing. It should also be remembered that the burden of proof is on the employer to satisfy itself on 'the balance of probabilities', that is to say, more likely than not, that the allegation occurred.

Reporting on the investigation

Any report should be objective, focused on the relevant issues, and should summarise the facts, clearly set out the allegations, address the evidence for and against each allegation, and assess whether each allegation is substantiated. It is impossible to guard against any challenge at all, but if you follow the above guidelines, it will make it much less likely that the outcome of your internal investigations is challenged.

In summary

The above guidelines should be adopted in every disciplinary, ethics, or misconduct investigation to ensure that the result is defensible. Of course, the issues that can arise can be technical and unpredictable so the key to successfully navigating the investigation process is to be clear about the purpose and its legal basis from the outset. For more information on investigating employee misconduct or any other industrial and employment-related matters, please contact us.