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Investigating misconduct requires skill

By Ivan Israelstam, Labour Law Management Consulting

Two common mistakes that employers make on receiving misconduct allegations against employees are:

Firstly, they ignore the reports because acting on them is “too much trouble”, or because they fear infringing the myriad of legal rights that employees enjoy. This constitutes dereliction of duty or ignorance of the legal process on the part of the management.

Alternatively, the managers may hastily implement discipline without first investigating the validity of the reports. This may occur due to feelings of anger or to ignorance of the labour law pertaining to the disciplinary process. Investigation of misconduct allegations is a crucial step in legally acceptable disciplinary action and cannot be bypassed.

In the case of TGWU obo Joseph and others vs Grey Security Services (Western Cape) (Pty) Ltd (2004, 6 BALR 698) several security guards were dismissed after the employer’s client requested the employer to remove the guards from the premises for having been involved in dishonest practices.

The employees refused to be transferred away from the client’s site and were therefore dismissed. The CCMA found the dismissals to be substantively unfair. This was because the employer had not investigated the client’s allegations of dishonesty against the guards. The employer was therefore ordered to reinstate all the employees with full back pay and to pay their costs. Such a costly reinstatement might not have occurred had the employer investigated the conduct alleged by the client.

Who should investigate?

The investigator should ideally be, but does not have to be, the same person who is going to present the case for the employer at the disciplinary hearing (This person is normally known as the “complainant” or “initiator”).

What is the purpose of investigation?

Investigation is an exercise designed to test allegations or suspicions, to find out what really happened and to establish whether there are grounds for disciplinary action. If the investigation shows that there probably was serious wrongdoing, the evidence gathered will also be used to prepare and present the case against the employee at a disciplinary hearing.

How long should the investigation last?

There is no specified period for completion of an investigation. However, the investigation must commence without undue delay and must only be halted when the investigator is fully satisfied that every stone has been turned over. The length of the investigation depends on the nature of the case, the amount of evidence and the availability of witnesses and other evidence. Typically, a good investigator will find that the more evidence he/she uncovers, the more leads there are. It is only when this process of following all lines of inquiry has been exhausted, that the investigation can be halted.

Must the employee know of the hearing?

It is not a standard legal requirement that employees be informed that there is an investigation on the go. This is more particularly so if:

  • An issue, and not a person, is being investigated; or
  • Informing the suspect could genuinely enable him/her to interfere with and jeopardise the investigation

Nevertheless, employers should be very careful about interfering with the employee’s right to privacy. This is especially so where the investigation probes the employee’s private life instead of workplace matters.

Suspension during investigations

The employer should only consider suspension if there is a real danger in keeping the employee on the premises. Any such suspension must be with pay, in writing and must make clear that it is only a temporary measure.

What makes a good investigator?

Concluding an investigation that optimises the chances of a successful disciplinary hearing requires a great deal of skill. Investigators need to know how to:

  • Identify relevant witnesses, documents and other evidence
  • Engage with witnesses to elicit the true and complete facts
  • Recognise a new lead when it arises
  • Keep within the laws limiting the rights of an investigator
  • Put all the facts gathered into a clear and comprehensive report
  • Question suspects without letting on that they are suspects.

As these skills are difficult to develop investigators and complainants should be trained by experts in labour law and in the investigation of misconduct.

Labour Law Management Consulting will be holding an online seminar, which looks at conducting investigations in a Covid-19 environment.  For more information about the seminar, contact Ronni at ronni@labourlawadvice.co.za or on 084 521 7492.

Image credit: Bill Oxford / Unsplash

 

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