Author: Vince Scopelliti – Tuesday, February 25, 2020
When dealing with allegations of staff misconduct, employers must be able to clearly delineate between fact-finding and disciplinary investigations.
This includes communicating the difference to staff involved in the process.
FACT-FINDING VS FORMAL INVESTIGATION
A ‘fact-finding’ process is often a necessary preliminary step in determining whether a disciplinary investigation is warranted. Following an incident or complaint, a third-party must interview involved parties to obtain objective information and determine whether the event merits a more detailed investigation.
Alternatively, the results may be sufficient to establish that there was no misconduct, or that the results of any further investigation are unlikely to provide any clear determination. Fact-finding may initially be a fairly informal process, although it should still be clearly documented.
It is extremely important that staff are made aware that a fact-finding process is simply that – not accusatory but only to gather information. This should be clearly spelled out in the organisation’s policies and procedures, which staff participating in the process should be pointed towards.
By contrast, once an investigation has commenced, the process becomes much more detailed and formal. This includes the preparation of specific witness statements, collection of detailed information and supporting evidence, and the preparation of a report. That report will be relied upon by management and other decision-makers in determining the consequences following an investigation.
Disciplinary investigations are formal processes that involve specific allegations being put to employees. They are surrounded by confidentiality obligations and are intended to determine whether an incident was a breach of policy which warrants disciplinary action, and not whether an incident actually occurred.
It is important to bear in mind that the point of a disciplinary investigation is to protect the rights of an individual subject to potential disciplinary proceedings.
COMMUNICATING THE PROCESS TO THE EMPLOYEES INVOLVED
Parties engaged in a fact-finding process should be advised clearly why they are involved.
Although it is an informal process, staff should be told that they are being interviewed to outline and assess matters of concern before management can determine a course of further action.
The purpose of the meeting should also be clearly outlined, as well as its status as part of a preliminary assessment or a potential precursor to a formal investigation. However, although the general nature of the query needs to be raised, there is no need for specific information to be divulged.
Before potential respondents are interviewed during the fact-finding process, management should give serious consideration to whether it is essential to do so. If it really is required, the potential respondent must be told that the next steps could involve moving to a formal investigative process and potentially the issue of misconduct allegations which will require a formal response.
WHAT HAPPENS WHEN THE LINE BECOMES BLURRED
At any point when fact-finding starts getting too close to asking specific questions related to the subject nature of any potential complaint, it is straying towards an informal disciplinary investigation.
This is rife with potential implications for the business, particularly if formal disciplinary processes are commenced as a result. The rights of the accused employee are at risk, and any conduct endorsed by the business could result in unfair dismissal or similar actions by the employee. At this stage, it is recommended that a business involve the services of a formal, external investigator to finalise the process.
If you want to protect your business, draw a real distinction between fact-finding and disciplinary investigations. This can be achieved by using an external provider for all disciplinary proceedings. WISE Workplace offers independent, unbiased and expert third-party investigation services to support you every step of the way – from unpacking the facts of a workplace problem to analysing all sources of evidence raised in relation to misconduct.