The employee’s supervisor, coworker, the person who will make the final decision regarding discipline, or a person from the same union, should never conduct investigations of this type. Moreover, the investigation should not be conducted by anyone that may have a real or perceived conflict of interest.
It is critical that the investigator follows the due process requirements when conducting an investigation. Below are the seven tests of just cause:
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Reasonable Rule or Order: Was the company rule or order reasonably related to the orderly, efficient, and safe operation of the business, and was the performance one that the company might properly expect of the employee?
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Notice: Was the employee given a forewarning of the possible consequences of his/her conduct?
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Investigation: Did the company make every effort to discover whether the employee did violate or disobey a rule or order of management, before administrating the discipline to an employee?
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Fair Investigation: Did the company follow procedures to ensure a fair and objective evaluation of the evidence?
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Proof: Did the person(s) judging the evidence obtain sufficient evidence to render a guilty verdict?
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Equal Treatment: Has the company applied its rules, orders, and penalties the same way for all employees committing the crime at hand to all employees.
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Penalty: Was the discipline administrated reasonably related to the seriousness of the employees proven offense, and was the employee’s employment record for the entire time he/she has been employed by the company taken into consideration when the disciplinary action was established?
A “no” answer to any of these questions could be an indication that the investigation id flawed and may be in jeopardy.
Constitutional due process requires an adequate notice, and fair procedures are utilized when investigating an employee. Additionally, the employee must be provided with a meaning full the opportunity to show his/her innocence. In order to meet the “meaning full opportunity” to refute the allegation criteria, the investigator must conduct the investigation in a timely manner. If not done timely, available information may be forgotten by witnesses or documents may no longer be available. The accused must be interviewed as part of the investigation prior to reaching any conclusions about the alleged conduct. If the employee is a member of a union he/she may bring union representation to the interview. Should the employee come to the interview without representation, and during the interview decide that they want representation, the interview must halted and rescheduled with the employee and his/her representation.
If the investigation results in the determination that the employee will be suspended, demoted, or discharged, the persons issuing the discipline must:
- Notify the employee of the proposed discipline in writing and give him the opportunity to meet with the authority handing out the discipline.
- Notify the employee, in writing, of the evidence against him/her.
- Provide an opportunity for the employee to meet with the authority handing out the discipline and respond to the charges at the meeting.
This rule applies even if the employee has already had, and took advantage of, a meeting with or without union representation as described under the due process requirements.
One of the most difficult parts of conducting an investigation is deciding whether or not the employee under investigation should be placed on administrative leave for the duration of the investigation. Following are a few questions that may be of use when faced with this decision. If the answer to any of these questions is “yes”, the person under investigation should be placed on administrative leave.
- Is the employee a threat to other employees or company property?
- Does the employee have access to computer systems and could this employee delete or change important company records through these systems?
- Will the employee’s presence at work create an unpleasant atmosphere for other employees and affect the work performance of other employees?
- Did the employee’s alleged actions endanger other employees or customers?
- Would the employee’s presence at work intimidate other employees who witnessed the allegations?
If any of these questions result in a yes answer the investigator should determine if other restrictions, such as limited contact with other employees, should be imposed.
The Complaints and Investigations Article requires that the investigator must determine if probable cause exists before proceeding with an investigation. Probable cause is determined by:
- Talking to the complainant to ensure that the complaint is valid and that the investigator understands the complaint in its entirety. This interview may be conducted before the employee is notified of the investigation, chiefly because this interview may result in the determination that the allegations are unfounded.
- If sufficient evidence exists to believe the allegations may be true, would the alleged actions constitute grounds for discipline?
The Complaints and Investigations Article requires that the employee be notified in writing that a complaint was made against him/her, and the initial investigation found the compliant to be unfounded (no probable cause). However, if the investigation results in the finding of probable cause, the employee must be notified in writing that an investigation is being conducted and that he/she will be interviewed. The employee must be informed of the nature of the investigation including a description of the alleged incident. Word the allegation broadly enough to encompass all aspects of the conduct under review. Failure to do so could result in the issuance of more notices relating to the same allegation. Be careful not to attach a name to the charge such as “sexual harassment”, but describe the employee’s general conduct that resulted in the filing of the complaint. At this point the investigator only knows the behavior that led to the complaint, not whether or not the behavior falls under the classification of “sexual harassment”. If the employee is a union member, a copy of the notification should be mailed to the union and the employee’s immediate supervisor. Ample tome must be given to anyone the investigator wishes to interview. In most instances at least a forty-eight notice is required.
When preparing questions for the interviews look at all documents, and obtain any information that may be important in determining the outcome to the employee’s discipline. Decide who should be interviewed and in what order. Make sure all witnesses who may have knowledge about the alleged incident are interviewed. Two investigators should be present during the interviews, both should take notes and ask questions, which they can later compare to determine if they are both in agreement with the witnesses answers. As stated above, the employee being investigated must be interviewed at least once. Generally, this employee under investigation will be interviewed last. However, this is not always the best approach. The following question may help to determine if the employee under investigation should be interviewed first or somewhere before last:
- Is it possible that the employee may admit his/her wrongdoing? The admission of guilt will bring the investigation to a close more quickly if the accursed is interviewed first, or at least one of the first.
- Is it possible that the interview with the accursed will help in targeting other people that should be interviewed, and what questions are imperative?
Occasionally, it may become apparent during an interview with a witness that he/she may be subject to discipline due to the nature of his/her answers. In these instances, the investigator must end the interview and the witness must be treated as an employee under investigation. Do not interview the accursed first if there is reason to believe that the accursed will use the information obtained to influence other witnesses. If the incident in question involves witnesses outside the company, such as customers, make sure they are willing to cooperate before the case proceeds to court or arbitration. Written statements from witnesses can be used in both court and arbitration procedures; however, they will not hold as much weigh as a person appearing and testifying in person.
