Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
There are a number of important issues relating to disciplinary investigations:
Who should investigate?
The investigator should ideally be the same person who is going to present the case for the employer at the disciplinary hearing.
What is the purpose of investigation?
Investigation is an exercise designed to establish whether there are grounds for disciplinary action and for use when preparing and present the case against the employee at a disciplinary hearing.
How long should the investigation last?
There is no specified time period for completion of an investigation. However, the investigation must commence without unnecessary delay and must only be halted when the investigator is fully satisfied that every stone has been turned over. This 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 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 so as 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.
