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Employment Law Update – Running a Sound Process

  • 30 April 2015

As an employer it is almost inevitable that you will encounter issues with employees that will require an employment investigation. The issues that could arise are as many and varied as the employees themselves, however, some examples are: complaints by an employee against another employee, complaints by clients or customers or accidental discoveries suggesting misconduct or dishonesty by an employee. Any action taken by an employer involving an employee can be scrutinised by way of the affected employee raising a personal grievance, and employment investigations are no exception. If the need for an employment investigation arises, an employer must ensure that the investigation can withstand scrutiny, and that any action resulting from the process was what a reasonable and fair employer could have done in all the circumstances.

When an issue comes to the attention of the employer, the employer should refer to the written employment agreement of the employees involved, and any policy and procedure documents that may set out the process to be followed in an employment investigation. It may be that these documents are silent about process, but if they do set out a process to be followed it is important that it is adhered to for the robustness of the investigation process.

Depending on the nature of the event or incident, an employer may wish to suspend the employee while the investigation is undertaken. If an employer wishes to suspend an employee, the written employment agreement must provide for this. If suspension is contemplated, the employer must obtain the employee’s views regarding suspension before making the decision to suspend the employee.

The next step is to gather the facts of the event or incident. The employer should carefully consider who needs to be spoken to in the course of the investigation. For example, the complainant and employee directly involved in the issue would be spoken to, as well as any others involved.

The employer should gather as much detailed information about the event or incident as possible through direct interviews and other information, for example emails, photographs or other documentary evidence. Any interviews or discussions with people involved should be carefully noted, as this information is at the very heart of the investigation process and may well form the basis of any future decisions regarding the employment of the employee under investigation.