BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Web Address: www.labourlawadvice.co.za.
Investigation of misconduct allegations is a crucial step in legally acceptable disciplinary action and cannot be bypassed. However, employers often fail to investigate allegations of misconduct or poor performance because they are busy, because of feelings of anger towards the employee or due to ignorance of the labour law pertaining to disciplinary process.
In the case of Ngake vs Incredible Connection (Pty) Ltd (2011, 2 BALR 202) the employee was dismissed for dishonesty due to the loss of a great deal of stock. At the CCMA the arbitrator found that the employee had not been proved guilty of dishonesty and should not have been fired on such grounds. However, the arbitrator accepted that the employee’s conduct had made continued employment intolerable because the substantial stock losses were due to her unacceptable failure to perform her work properly. Despite this the arbitrator ordered the employer to pay the employee financial compensation because it had failed to investigate the cause of the stock losses despite the legal obligation to do so. Had the employer conducted a thorough investigation it would have been able to show either that the stock losses were due to the employee’s poor work performance or that, contrary to the arbitrator’s finding, the employee had in fact been dishonest.
The investigator should ideally be, but does not have to be, the same person who is going to present the case for the employer at the disciplinary hearing (This person is normally known as the ‘complainant’ or ‘initiator’).
WHAT IS THE PURPOSE OF INVESTIGATION?
Investigation is an exercise designed to test allegations or suspicions, to find out what really happened and to establish whether there are grounds for disciplinary action. If the investigation shows that there probably was serious wrongdoing the evidence gathered will also be used to prepare 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 delay and must only be halted when the investigator is fully satisfied that every stone has been turned over. The length of the investigation 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 of following all lines of inquiry 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 AN EFFECTIVE 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 necessarily 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.
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The opinions expressed in this article are the author’s own and do not necessarily reflect the view of Lexinfo CC.
Posted: 08 May 2023
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