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UpdatesSep 06, 2013

How to handle an allegation of employee misconduct

Here are some key action points in handling employee misconduct.

By Charles Power

Here are some key action points in handling employee misconduct:

  1. Don’t start an investigation into misconduct unless you have sufficient evidence. At the same time, if you have sufficient evidence, don’t delay!
  2. Make sure the alleged misconduct is not associated with a protected activity or attribute.
  3. Don’t exaggerate the employee misconduct.
  4. Inform the employee of the allegation in full. Sometimes this may mean disclosing the identity of a witness. You should warn witnesses of this possibility when collecting evidence.
  5. Give the employee a proper chance to tell their side of the story.
  6. Only suspend an employee if the alleged misconduct is serious or the employee’s presence in the workplace might harm your business or interfere with the investigation. Generally, suspension will be on full pay.
  7. If the charge is serious and the employee is at risk of being dismissed if the misconduct is proven, then tell the employee this.
  8. Offer the employee the opportunity to postpone the meeting so that they can take advice or prepare their response.
  9. If the employee indicates that they would prefer to provide a written response, you should let them do so.
  10. Offer the employee the option of having a support person or witness in the meeting, e.g. a friend or relative, union representative, etc. Ensure the support person is not someone who has given evidence or been involved in the investigation.
  11. Investigate any relevant information or explanation raised by the employee about the alleged conduct.
  12. Interview witnesses individually and tell them not to discuss their evidence with other witnesses.
  13. Arrange for two representatives from your business to be present during the meeting. One of these representatives should ask questions and the other should take notes. The presence of witnesses such as these can be helpful if there is any dispute later on over what was said in the meeting.
  14. Only record disciplinary meetings with the consent of all parties.
  15. If considering dismissal, ask whether that ‘punishment’ fits the misconduct ‘crime’.
  16. Develop and follow procedures for handling employee misconduct. Train your managers in them. Don’t however publish them to employees – or if you do make sure you have a clause that makes it clear that you are not promising (in a legal sense) to follow them.
  17. Don’t dismiss summarily unless you have clear evidence of serious employee misconduct. If you dismiss on notice make sure you have ascertained the correct notice.

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