With the axing of the FBI Director in the US, procedural fairness, natural justice and good faith are all in the international spotlight in relation to misconduct investigations. In today's complex employment world, it's vital you follow a number of key steps to ensure you act fairly through any disciplinary investigations your company may be involved in.
Jason Tuck, national HR manager - supply chain and employment relations at Countdown believes there are three key parts to a positive and fair process.
"Firstly, it's really important to do a preliminary investigation into what's happened before formally meeting and discussing any issues with your team member," Tuck says.
"This will help you determine if a formal process is required and how serious the matters might be. Sometimes that's not always apparent and it's important you commence with an open mind, not making assumptions will ensure your team member is given a fair go."
Gather evidence and witness statements to identify what company policies, procedures or conditions of employment might have been breached.
"If there's risk up front, then standing the individual down on pay before the substantive investigation takes place might be appropriate to minimise further risk. In such situations, formally meet with the individual to discuss this option, making sure you give them the opportunity to have representation and comment on the possibility of stand down before you decide. Remember this meeting is only to discuss whether stand down is appropriate, before the main investigation takes place" Tuck says.
If the preliminary investigation indicates that a formal investigation is required, write to the individual detailing the allegations / issues of concern and reference these back to how they breach policies, procedures or conditions of employment. Tuck advises employers to "provide copies of all witness statements and evidence that you've gathered during your preliminary investigation. You need to advise the individual of their right to representation and give them at least 24 hours notice of the meeting to prepare," says Tuck.
At the meeting set out the allegations and provide the employee with an opportunity to comment or explain in their own words what happened and why. "Listen to what they have to say, clarify your understanding and, if necessary, conduct further investigations," says Tuck. Take time and remember the more serious the allegations, the more robust the investigation and decision making needs to be.
For fairness and transparency, Tuck says "there should be no surprises, the tentative findings and outcome should be detailed in writing before the investigation meeting is reconvened so your team member can comment at this meeting before the final decision is made."
Once you have determined the outcome and the employee has had a chance to comment, confirm the decision in writing. While each investigation is unique, if employers follow these key steps, they will fulfil their core obligations and ensure the process is fair, transparent and robust.
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