Many employers seem poorly trained in the fine art of conducting an investigation of employee misconduct. Unfortunately, their failure to conduct a thorough and objective investigation likely dooms their just cause position from the outset. Their poor rate of success in defending terminations on a just cause basis reveals this most clearly.
Recent court cases provide useful lessons about the proper method of conducting an investigation of employee misconduct. First, the employer must ensure that the information it is collecting is reliable. Employees should be interviewed separately and only first hand evidence (not hearsay) should be recorded. The employer should not simply accept as fact what the complainants are saying – they should be tested to determine the reliability of their evidence.
Second, once the complainants’ evidence has been collected and recorded, the employee should be given a fair opportunity to answer the charges. That means explaining the allegations and the specifics of the events which are the basis of the complaints. A person cannot be expected to answer a complaint which is expressed in generalities, so details need to be provided. The employee should be given an adequate opportunity to consider the circumstances of the allegations before being forced to provide explanations.
Third, the employer must not jump to conclusions about the outcome of the investigation. It shouldn’t, for instance, arrive at the fact-finding meeting with the employee with a dismissal letter in hand. This is a sure sign that the employer made up its mind to dismiss before even hearing the employee’s side of the story. The employee’s lawyer will revel in this opportunity to point out to a judge that the employer never gave the employee a fair opportunity to refute the allegations.
Finally, and most importantly, everything in the course of the investigation must be thoroughly recorded. A person should be designated to do nothing but observe the various discussions and make notes. Because memories fade, this written record will often be the employer’s best evidence of what was said and done during the course of the investigation.
Following these simple steps will greatly increase the employer’s chances of having its just cause position upheld by a judge. The odds of success may still be long but at least they will provide the employer with a fighting chance.