How to Minimise Your Risk of Personal Grievances When Investigating Workplace Misconduct
It’s all about the Right to a Fair Hearing which is known as Procedural Fairness
The three main requirements of Procedural Fairness (Natural Justice) that employers must meet in every case are:
give adequate notice of the meeting,
carry out a fair hearing, and
do not predetermine the outcome of the investigation as it shows bias.
Sometimes, all three of these concepts are grouped together as “the right to a fair hearing.
This suggested guide for Employers helps ensure they carry out a fair procedure when investigating an employee’s actions for alleged misconduct or serious misconduct.
1. Notify your employee in writing of the specific allegation and of the likely consequences if the allegation is established. Inform your employee in clear terms that:
- The employee is required to attend an investigative meeting at a reasonable convenient time and date
- This meeting is to investigate the employee’s alleged actions, misconduct or serious misconduct
- The employee is entitled to seek support from a union or other representative or support person to attend the investigative meeting with them
- That any explanation offered by the employee will be taken into account prior to any decision being made by the Employer as to what, if any, sanctions may be imposed
2. Employers must give the employee a real (not nominal) opportunity to refute the allegation or to explain or mitigate their conduct.
NB: The Employment Court has held “that an employer who has not inquired into the possibility of innocent explanations for apparently irregular misconduct cannot claim to have reached an honest belief that the employee is guilty of serious conduct justifying dismissal”.
The implications of this are that:
- The employee’s investigative meeting(s) must be seen to be fair , non-threatening and free from bias or predetermination
- Information relied on should be disclosed to employee by the Employer
- Reasonable time should be given to the employee to respond to the matter(s) raised by the Employer
- Ideally an adjournment should be taken by the Employer to considers its position, responses of the employee and whether further enquiries need to be undertaken prior to making a decision as to sanctions, if any, are to be imposed
- Such sanctions may include counselling, verbal warning, first written warning, final written warning or dismissal
- In certain situations, it may be necessary to impose a period of suspension on the employee so the Employer can carry out further investigations
FURTHER REDUCING EMPLOYER RISK
Comprehensive Policies and Procedures Schedules – A Useful Tool for Employers in Reducing Personal Grievances Claims
3. Ideally, Employers should have formal Comprehensive Policies and Procedures that each employee has signed, so employees can’t say they didn’t know their alleged action(s) may result in a warning or dismissal. If you don’t have these we are able to help you develop same.
4.Employers can also reduce the possibility of a Personal Grievance claim by supplying Management Staff with Training and a Simple Procedural Guide to Disciplining Staff.
If you wish to prepare, review and update your Employment Policies and Procedures and/or Procedural Guidelines for Management, you are invited to contact me directly.
Alternatively, I will be happy to provide you with a FREE 10 minute APPRAISAL of your current Employment Policies and Procedures Schedules and then at your direction, prepare, advise and recommend on updating and improving same if required.
I am hopeful this information has been useful for you and alerts you to the necessity of fair procedure and natural justice when disciplining your employees. I plan to send out helpful information around once a month.