Make sure you get the investigation process right
One of the most common mistakes employers make when they receive misconduct allegations against an employee is to hastily implement discipline without first investigating the validity of the allegations. This can occur because of ignorance of the labour law about disciplinary processes.
Investigating misconduct allegations is a crucial step in legally-acceptable disciplinary action and it should not be bypassed.
The investigator should ideally be the same person who will present the case for the employer at the disciplinary hearing. If the investigation indicates that there is a strong likelihood that serious wrongdoing has been committed, the evidence gathered will be used to prepare and present the case against the employee at the hearing.
There is no specific time period in which you must complete an investigation. However, it must last as reasonably as practicable for the specific case. The length of the investigation will depend on the nature of the case, the amount of evidence, the availability of witnesses and other evidence.
Important: It is not a standard legal requirement that employees are informed that an investigation is currently being conducted if they are the target of the investigation.
What skills do investigators need?
Investigators need skills to:
- Identify witnesses;
- Identify documents and other evidence;
- Engage with witnesses to elicit true and relevant facts;
- Keep within the laws limiting the rights of the investigator; and
- Place all facts gathered into a clear and comprehensive report.
The better this is done, the better the case will be presented at the disciplinary enquiry.
As these skills are difficult to develop, it is critically important that investigators are properly trained by experts in labour law and in misconduct investigation.
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Author: Jonathan is the CEO of Global Business Solutions and is a nationally acclaimed consultant, lecturer, attorney and author on matters relating to Labour Law, Industrial Relations and Broad-Based Black Economic Empowerment. Jonathan is also an Arbitration and Mediation panelist, accredited Commissioner of the Commission for Conciliation, Mediation and Arbitration, member of Tokiso dispute settlement panel. |
