Increasingly we are seeing a greater focus from the Employment Relations Authority on the need for employers to ensure that a thorough investigation is undertaken into a complaint or concerns held by the employee prior to the matter being elevated to a formal disciplinary process. This is primarily the case where the potential disciplinary process may result in the termination of the employee’s employment.
In such cases the Employment Relations Authority are increasing looking to assess whether the employer undertook a thorough investigation prior to determining that the matter needed to be elevated to a formal disciplinary process.
The requirements regarding Procedural Fairness and Natural Justice must be met in any employment investigation process to ensure the final report is not jeopardised on a procedural basis. Procedural Fairness requires that the parties being interviewed are provided with all information relevant to the investigation prior to the date of their interview, that they are given the opportunity to comment / respond to this and are advised of their rights to seek independent support and representation throughout the process. Natural Justice is the principle to guard against bias in decision making and in ensuring the employee has the right to a fair ‘hearing’.
When required to undertake an investigation into an employment related matter, the Employer should ensure that their actions or inactions do not unreasonably compromise the integrity of the investigation process. A simple checklist would include ensuring that:
- You have not been involved in the matter requiring investigation
- You have sufficient knowledge of the matter requiring investigation
- You able to look at the matter objectively
- You independent of the parties’ subject to the investigation
- Your involvement does not compromise the integrity of the investigation
- You have the skills to undertake a thorough investigation
- You have the time available to undertake the investigation efficiently
If you are not able to say ‘yes’ to each of the above principles, the final investigation outcome may be compromised and therefore open to legal challenge by the Employee under investigation.
Often Employers have the required skills and knowledge to investigate a situation, however their relationship with the parties under investigation may be too ‘familiar’ with this opening their outcome report to allegations of bias and predetermination – even if they have sought to adopt an independent stance throughout the process. In such cases, the Employer should consider assigning the investigation to another manager from outside the immediate work area associated with the investigation or engaging a suitably skilled independent party to manage the investigation on their behalf.
With the costs of successful Personal Grievance claims increasing significantly in the last 12 months, the Employer is often faced with the question as to whether to attempt to save costs by undertaking the investigation internally – possibly increasing their risk of Personal Grievance, or invest money in an independent investigator and potentially reduce the risks of a successful and expensive Personal Grievance.
If you encounter a situation where you believe that an employment investigation may be required and are either ensure of the process or need specific assistance, please feel free to call us to discuss your options.