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INTERNAL DISCIPLINE INVESTIGATIONS - PART 1 (21st December 2007)
1(a) Introduction and overview
Internal disciplinary investigations are becoming more common within the workplace. It has become recognised by management that the early resolution of internal grievances and claims of misconduct of whatever nature is beneficial to both the employer and the employees concerned. Unnecessary delay in this resolution process can mean relatively minor issues can develop into long term disputes which can spread to impact upon individuals not originally involved in the dispute which, in turn, can lead to an adverse affect on morale of the workforce and increase the incidence of stress amongst employees involved. It is important that all employees should be aware of their rights to make a complaint and understand the process which will be followed once that complaint has been made.
It should be understood at the outset that during the course of such investigations the strict rules or laws of evidence do not apply as they would do so if the issue was being heard before a court; on the other hand there are important principles to be observed when conducting any investigation and reaching a determination of the issues raised and I will deal with those matters during this paper.
The person charged with the duty of conducting an investigation must have a clear understanding of the issues raised by the complainant. If that is not clear from any documentation submitted, or verbal information supplied, then early enquiries should be made of the complainant to clarify the critical elements of the complaint, the time or times at which the basis of the complaint arose and the person or persons the complainant alleges caused the complaint to be made.
Once clarity has been established, a knowledge of the relevant policies of the organization which may be relevant to any decision ultimately to be made in respect of the complaint is obviously necessary. It may also require the investigator to be familiar with certain aspects of the nature of evidence presented when making a decision after gathering all of the relevant facts. I shall return to those considerations shortly.
It is appropriate to mention the possibility of an offer by the investigator / manager to engage in an unofficial mediation between the parties at a very early stage if the parties agree to openly discuss their problems with a genuine desire to resolve the matter promptly. That is a decision for the Manager to make, given the nature of the complaint and the personalities of the individuals concerned.
1(b) Impartiality
It is fundamental that all investigations must be approached with unwavering impartiality and objectivity. This can sometimes pose difficulties for a particular manager who may be socially friendly with one of the parties, or to have a history of disputation with one of them. The perception of fairness and lack of bias of an investigator by all who may be involved in a particular matter is paramount to achieving an outcome which the parties may accept as being fair and reasonable based upon the evidence adduced during the enquiry. Should a manager find himself or herself in a position of potential conflict then the matter should be referred to another manager for enquiry and adjudication. As George Bernard Shaw wrote in his work “Back to Methuselah” “Justice is impartiality. Only strangers are impartial.”
1(c) Objectivity
In this context objectivity is the first cousin of impartiality, but it does no harm to reinforce the necessity for a manager conducting an investigation to put aside all preconceived views or opinions of the characters involved and confine himself or herself to an unbiased view of the relevant facts adduced during the investigative process.
1(d) The principles and application of natural justice
In a recent article published by Ross Jackson, a partner in the law firm of Maddocks Lawyers, the nature of these issues were expressed succinctly. Mr Jackson said: “In disciplinary processes natural justice is satisfied where an employee is granted (1) a chance to be heard on why an action adverse to his or her interests should not be taken, and (2) access to an impartial decision maker”.
The Public Sector Standards Commissioner has referred to natural justice in the context of the role of a decision maker. The Commissioner stated that it is a requirement for “a decision maker to act in good faith and without bias, to provide an opportunity for a person whose interests will be affected by the decision to put their case before a decision is made and that the decision is based on the evidence. It is also important that participants are kept informed of progress on the matter.”
In Part 2 we take a look at the Investigative Process.
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