14 Aug INVESTIGATIONS: SERIOUS MISCONDUCT ALLEGATIONS
Appropriate strategies in investigations of allegations of misconduct can vary significantly in degree of sophistication. Once a process of investigation commences, it may take a life of its own. A strategy and sound decision making early in the process can ensure a fair and efficient and supported decision-making process. This process may be something that finds its way into legal proceedings.
Employee misconduct often shocks the Employer business at the time of allegations coming to light, and prior to those allegations being established. Hasty action can have unforeseen outcomes during the investigations, such as claims for breach of general protections.
Allegations of an employee’s serious misconduct often shocks the employee, and the allegations and findings should not be made lightly. Simply, a finding of serious misconduct should not be made without a proper basis for that finding.
The Fair Work Act 2009 and the Fair Work Regulations 2009 include definitions of serious misconduct.
Employment contracts, policies, codes of conduct and guidelines may be relevant to the investigation process undertaken.
Allegations of serious misconduct may not be made out to the requisite degree. Other misconduct may be discovered throughout the investigation process. Examples may include breach of confidence, failure to follow policies and/or procedures.
Prompt investigation of warning signs of employment misconduct often reduce costs and stress involved in the control process and reduces the risk of workplace misconduct investigations. For an employee, the process might require some time for a proper response to be fashioned.
Appropriate supervision is often difficult and less distinct in smaller to medium-sized businesses where duties and responsibilities blend in individuals roles. Confidentiality in an investigation process in a small business can be difficult to maintain.
Some of our observations, some strategies and at times necessary measures during the investigation process can include the following:
- Control physical access to premises and property and system access.
- Searching of systems, databases and electronic media.
- Interviewing employees, suppliers, clients and other people.
- Contract review.
- Paid or unpaid suspension. Unpaid suspension is only available in limited circumstances, and should have a contractual basis.
- Once the allegations have a sound basis, putting the allegations to the employee and notifying the employee of the investigation. Such a step may serve an employer in reducing risks associated with claims including unfair dismissal claims and claims for breach of general protections. It may also uncover misconduct of other employees and other non-employed participants. Employees may also have innocent explanations and affording procedural fairness allows those explanations to be ventilated.
- Privileged reporting and advice by lawyers.
- Some matters can be established on objective documents.
Appropriate investigations involve consideration of possible disciplinary consequence for the misconduct.
Disciplinary action up to and including termination may be appropriate, based on whether the termination is or is not “disproportionate to the gravity of the misconduct”. The gravity of the misconduct will be relevant if unfair dismissal claim is made by an employee. One instance of misconduct may not justify a dismissal.
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