Purpose:

The purpose is to establish whether there is any substance to the allegations / complaint and decide on your investigation plan including; who needs to be involved, will you handle it now (or delay while people ‘cool off’ or others become involved), might stand-down be necessary etc

Main Steps:

• Advise and involve your Manager and HR.
• Get a brief statement from the main witnesses or complainants.
• Assemble any facts or documents supporting the allegation.
• Secure evidence (so it isn’t destroyed or changed).
• Identify the rule / policy/standard etc that’s been breached.
• Document the allegation and what you have done with good diary notes.
• Consider if stand-down is required (refer Step 3 for details)
• Agree your plan for the investigation.
• Prepare your “Advice to Employee” conversation.

Is there enough evidence to proceed?

Having done the initial investigation you need to decide whether to proceed with a disciplinary process.  Ask yourself, is it reasonably likely (subject to further investigation) that there has been misconduct, serious misconduct and that disciplinary action is a potential outcome? If you decide a disciplinary process is not required some other action may still be necessary (e.g. coaching, an informal reprimand or resetting of expectations, training etc).  Make sure to advise the employee of this outcome and that there will not be a disciplinary process.  If you decide to proceed with a disciplinary process then before you advise the employee you need to consider the following.

Are you the right person to handle this?

The principles for deciding who is involved are:

• Our policy is that managers should play the lead role in disciplinary matters involving their employees including making the final decision as to what action will be taken.
• For matters with potential outcomes involving a warning or dismissal you should involve your manager and HR in planning the overall process.
• Where you are potentially seen as not reasonably impartial or the employee’s defence may involve allegations he/she has been victimised by you or you may otherwise be implicated in the matter then talk to your manager about whether it is appropriate for another manager to lead the investigation.
• It is a requirement that employees have the opportunity to talk to the person making the ultimate decision in respect of any proposed disciplinary action before any final decisions are made.
• If the right people are not immediately available consider standing the person down on pay until they are if there is a risk the investigation process would be compromised by the employee remaining at work. (refer Step 3 for details).

Handle it now or later?

If the preliminary investigation satisfies you that disciplinary action, up to or including dismissal, may be warranted the next decision is whether to handle the matter now or later.

Considerations include:

•  Is some brief cooling off period required?
•  Do you need to collect some more preliminary evidence (before talking to the employee)?
•  Depending on the nature of the allegation you might need to get work recommenced so there is no further impact while you investigate further.
•  Are the right people available now?

If you need time before beginning the disciplinary process decide whether it’s OK that they continue working in the meantime. If not either isolate them in the workplace until you are ready or if a longer delay is required consider a stand-down on pay (refer Step 3 for details).

Next you need to advise the employee a disciplinary process is starting.  

When it is determined that the allegation has substance, it is necessary to advise the employee concerned. You should have a witness present and offer the employee the opportunity to do likewise. Use the advice to employee of disciplinary process-conversation plan to cover the following key points.

Inform the employee of:

• The nature of the allegation and the potential impact on their employment if the allegation is sustained.
• An outline of the investigation process including the proposed timetable.
• That they have the opportunity to be represented.
• The fact that the matter will be fully investigated and they will be provided with all relevant information and have the opportunity to respond to this.
• They will have the opportunity to provide a full explanation which will be seriously considered before any decisions are made.
• If necessary, a reminder that they should not attempt to interfere with the course of the investigation or to speak to any other employees or witnesses about the investigation themselves.
• That they can make any initial comments they choose.
• Discuss a stand-down if you believe it is required to assist or protect the investigation.
• You should confirm the process is underway with the Invitation to disciplinary meeting letter. 

Should we stand-down the employee during the investigation?

Usually employees will remain at work during the disciplinary process. However, depending on the facts of the situation and the nature of the allegation, there may be good reason to stand-down the employee from work during the disciplinary process.  While on stand-down the employee is required to remain available for discussions on the issue.  Stand-down is not a penalty.  It must be clearly necessary to facilitate our investigation – in other words we must be able to show there was good reason for the suspension.

Stand-down is generally on normal pay.

Stand-down will usually be on pay, unless the period of stand-down extends beyond two weeks due to a police prosecution or investigation (or any other third party enquiry) or the staff member delays or refuses to participate in the disciplinary process.  If you think that you may need to stand an employee down,  you should talk to your manager and HR before you proceed.

Stand-down policy and process:

Stand-down can be justified for one or more of the following business reasons:

• You are concerned the employee might tamper with evidence or intimidate witnesses;
• You are concerned the misconduct might be repeated;
• In the case of suspicion of dishonest conduct or misappropriation of property,  you feel there is some risk to the investigation if the employee remains on Council premises;
• In relation to allegations of harassment and bullying,  you are concerned witnesses might be influenced by the employee’s presence on site;
• Where you have concerns for the employees safety on site during the investigation and disciplinary process;
• A cooling down period is required,  for example after fighting or an abusive exchange;
• You consider stand-down necessary to protect Council operational and business interests.

Procedure for stand-down of an employee:

If you believe, for one of the above reasons that stand-down is necessary,  you must discuss your proposal to stand-down with the employee when advising them that a disciplinary investigation process is beginning and before finalising your decision to stand-down.  This discussion is usually part of Step 2 while you are advising the employee a disciplinary process is beginning.

In addition to the usual elements of that conversation you should deal with the issue of stand-down as follows:

1. Advise the employee that there is a proposal to stand them down for the period of the process and why that is considered necessary (e.g. one of the business reasons listed above).
2. Invite them to respond to the proposal of stand-down but not to the initial allegation, unless there is information they think should be considered.
3. Adjourn to consider their comments on stand-down and make your decision.
4. Reconvene the meeting and advise whether you have decided to stand-down.  You should make it clear that this is not a punishment and that the employee will be stood-down on pay while a disciplinary process occurs.
5. You should advise the employee that they should remain available to the investigation during the stand-down period.
6. The employee should be discreetly escorted off the property if the reason for stand-down suggests they should not be unsupervised on the premises.
7. You should document the stand-down including their response to the proposal to stand-down in the stand- down letter and issue this letter to them after the meeting.  

Carry out a more formal and full investigation to gather details of the alleged misconduct or performance issue.  Make all reasonable efforts to establish and confirm the facts.  Your investigation should include the following:

• Interview all persons who may have information. You will need to document what they say and preferably get signed statements.
• Obtain all relevant information and documents.
• Keep comprehensive and accurate records relating to the investigation.
• Carry out the investigation in an impartial, unbiased and open minded manner.  It is useful to think about what explanations the employee might offer and check these out in advance.
• Try to anticipate any potential defence the employee may make and investigate its likely strength or weakness.
• Document the key elements of the ‘case’ so you are ready to present them to the employee for their response i.e. what specifically is the rule / standard alleged to have been breached; what facts substantiate that breach; over what time; who witnessed the behaviour / breach; what evidence is there the employee knew the rule/standard; is the standard reasonable?; do others meet the standard?; was the employees training and support reasonable? etc etc.
• Provide all relevant information that you have gathered and that you may rely on in reaching a decision regarding the allegations to the employee before you meet with them.

Note: ‘secret’ witness statements are considered to put the employee at a disadvantage and unless there is extremely good reason for keeping an identity secret, relying on secret witnesses will significantly weaken your defense of a justified warning / dismissal.  If a person will not put their name to a ‘complaint’ talk to your manager or HR about whether, and how, the investigation should proceed.  

Key requirements of the interview are:

Use the Investigation Interview-Conversation Plan to prepare for and run this interview.

• Ensure the employee fully appreciates the significance of the interview and the most serious realistic consequences.
• If they aren’t represented, confirm they are waiving their right to representation and that they are happy to proceed with the meeting. If they are no,t it may be necessary to adjourn the meeting until representation is available.
• Ensure you have a support person present to assist you and to take notes of the meeting (another manager or a member of the HR team).
• Make clear you will require a full explanation about the matter once you have laid out and discussed the evidence.  Advise the employee they may raise any other additional information that they consider relevant to the allegation and /or their alleged actions.
• Formally detail the allegation or complaint – and go through all the information you have to support the allegation. If necessary adjourn the meeting to enable the employee to read and consider any new information they have not seen, before they are asked for an explanation or response;
• Ask for a full explanation and probe with open questions such as Why? When? Where? What? How?
• Make it clear they have an obligation to answer your questions and account for their actions.  If they do not cooperate, explain their actions, or answer your questions, make it clear you have the right to draw conclusions from whatever information you have without their response.
• Let them speak.  Listen to what they have to say.  Avoid interruptions.
• Adjourn to consider the explanation and check any new information (reasons, excuses, alibis) you received.

The purpose of this step is to decide, ‘on the balance of probabilities’, whether a breach of rules, Code of Conduct, standards etc has occurred and accordingly that some disciplinary action is justified.  (Note: the question of what type or level of action to take comes next and should be decided only after taking into account any mitigating factors).

Key elements in the consideration process include:

• If new facts have emerged in the explanation, check them out before making a decision. Ensure any further information you gather, that the employee has not seen,  is provided to them for comment and further explanation before you make any decisions.
• If there are differing versions of events then, after investigating as much as you reasonably can, you are entitled to decide which version or explanation is more likely to be true.  This is called the ‘balance of probabilities’ test.
• Your consideration must be ‘unbiased’ and ‘objective’ so if the employees explanation is that you provoked their action, you should get your manager to review the situation.
• Your consideration of the findings from your investigation must be made with an open mind. Your decision can be successfully challenged if it is found to be predetermined, biased or not supported by the facts.

Your decision finally is whether, on the balance of probabilities:

• A breach of our standards, Code of Conduct, policies or a term or condition of our employment agreement has occurred; or
• The behaviour that has been established ‘on the balance of probabilities’ during the investigation is a breach of our values / behaviours.

Unsubstantiated allegation

If an acceptable explanation is given by the employee, the employee should be told this and allowed to resume work on the same terms of employment as applied before the incident arose.  When an allegation is unsubstantiated, no action will be taken against the employee.

Substantiated allegation

If the answer is ‘yes – a breach of our code of conduct, employment agreement, standards etc has occurred’ the next step is to consider what level and type of action you should take in response.  In making that decision you will be  taking into account any mitigating circumstances.

The penalties available are generally reasonably clear and will have been explained to the employee at the beginning of the disciplinary interview.  Before deciding on a penalty you need to consider whether any of the following mitigating factors are present and might cause you to scale back the penalty that would typically be imposed. You may also invite the employee to provide any mitigating factors they wish you to consider before making a final decision regarding disciplinary action.  Again the test will you will be measured against if your decision on a penalty is challenged is “what could a reasonable employer have done in these circumstances”.

Mitigating factors checklist

• Knowledge (did he/she know rules and requirements?)
• Quality of information/evidence (is it sound or shaky?)
• Seriousness (how bad is the problem?)
• Implications (importance of action or inaction on this matter)
• Past practice (history in these cases?)
• Consistency (how have others been handled?)
• Employee work history (good or bad?)
• Frequency (how often has he/she infringed?)
• Time span (how long since last incident?)
• Personal circumstances (how would various penalties impact the employee?)

Conduct further investigations if required.

Your options

The decision will involve a choice between:

Verbal Warning

In cases of unsatisfactory performance or the first instance of misconduct a verbal warning may be given, which will be confirmed in writing using the Verbal-Written-final Written Warning Letter. This warning should make clear the improvement is expected and what the consequences will be if that improvement is not made.  Issuing a warning – Conversation plan

Written Warning

Where unsatisfactory performance continues after a verbal warning or there is a further instance of misconduct after a verbal warning or the level of misconduct justifies going straight to a written warning, then a written warning is appropriate.  Use the Verbal-Written-final Written Warning Letter.

Final Written Warning

Where unsatisfactory performance continues after a written warning or there is a further instance of misconduct after a written warning or the level of misconduct is sufficiently serious to justify going straight to a final written warning, then a final written warning is appropriate. Use the Verbal-Written-final Written Warning Letter.

Dismissal with Notice

Where unsatisfactory performance continues after a final written warning or there is a further instance of misconduct after a final written warning, then dismissal with notice will occur.

• Do not take a decision to terminate until after the final disciplinary interview has been completed (not before or during).
• Use the dismissal conversation plan to prepare for and run the dismissal meeting.
• Provide the employee terminated on notice with a letter or notice stating clearly the reason for termination. Use the Dismissal on Notice Letter.   Do not give this letter until after the meeting is conducted to avoid a claim the decision was pre-determined.
• The period of notice required to be given will be that specified in the employee’s employment agreement.
• You have the right to pay the employee in lieu of notice, thereby ending the employment forthwith in return for wages/salary equivalent to the required period of notice. This often prevents disruption by the dismissed employee during the notice period.

Dismissal without Notice (Summary Dismissal)

Dismissal without notice (sometimes referred to as summary dismissal or instant dismissal) is appropriate where the offence, once investigated and confirmed, constitutes serious misconduct.

• Dismissal without notice means dismissal without the need for the employee to receive any prior warning or without the need to give the employee notice of termination or payment in lieu of such notice.  However, there must still be a proper investigation and process before a decision to dismiss is made.
• Provide the employee dismissed with a letter stating clearly the reason for dismissal. Use the Dismissal Without Notice Letter.  Do not give this letter until after the meeting is conducted to avoid a claim the decision was pre-determined.
• Direct a employee dismissed without notice for serious misconduct to leave the workplace as soon as possible (with all outstanding pay down to the point of dismissal made up as soon as possible). Where appropriate, accompany the dismissed employee until clear of the workplace, but do so sensitively so the employee does not feel further humiliation.

Alternative Action

Alternative Action may involve:

• Allowing the employee to resign, (Check with HR first and ensure this is at their instigation).
• Retraining.
• Changes in duties and responsibilities (e.g. loss of some delegated authority or autonomy). Be sure their job description is amended accordingly and signed.
• Relocation to another office (suitable if there is a personal issue or conflict in the workplace)
• Time out (paid or unpaid). May be appropriate where the issue is a non-work issue or the employee will benefit from time-off.
• Transfer to another role better suited to their skills and abilities. (Document the basis of this. If the change in duties is significant you may need to get their agreement)
• Agreed demotion including appropriate salary reduction (Involve HR and ensure the change is well documented to protectBigApple from challenge)
• An EAP referral.

The following prerequisites are essential before alternative action is contemplated:

• The employee must take ownership of the problem and demonstrate a commitment to building a productive career withBigApple.
• The employee must be capable of making a positive contribution to the business in the future.
• Both you and the employee must have a shared commitment to making the alternative action actually work.
• The employee must agree to the alternative action proposed.
• The alternative action must not compromise future disciplinary actions.
• The alternative action must not prevent the possibility of eventual termination if the alternative action is unsuccessful.

Details on what the alternative action is, and why it is supported, must be put in writing and be signed off by those with appropriate authority.

Your recommendation

Having considered any mitigating factors you must then decide, and get sign-off for, the appropriate form of disciplinary action.  Refer – termination dismissal authorisation.  You may decide to talk with the employee before finalising your choice of a penalty. In that conversation you would confirm that your determination is that they have breached standards, Code of Conduct, policy etc and give the employee your preliminary view regarding the appropriate disciplinary action. You then invite their feedback and response to this before you confirm your final decision. This approach enables the employee to provide any mitigating factors that they want you to consider when you decide the outcome.

Note: If  the penalty you impose is challenged by way of personal grievance the legal test you face is whether the action you took is one a reasonable employer “could” have taken in the circumstances at the time the dismissal or warning occurred.  The Authority or the Court will not determine a dismissal to be unjustified solely because of defects in the process, if the defects were minor and did not result in the employee being treated unfairly.

Write to the employee (and their representative) to call a meeting to convey the findings. Ensure you cover the following;

• Summarize the original allegations and the investigation steps you’ve taken;
• Outline your findings from the investigation including key evidence and your conclusions and how you reached them;
• Explain the penalty you are considering imposing and seek any feedback on this.

Meet with the employee (and their representative) once the employee has considered the proposed penalty and provided feedback.  Confirm the decision on the penalty you are now imposing. Use the appropriate issuing a warning-conversation plan or dismissal conversation plan.

• If the penalty is dismissal explain exactly when termination takes effect, what their final payments etc will be and any arrangements for returning co property
• If the penalty is not dismissal talk about the expectations you have for improvement in future;
• Ask for their agreement to improve and agree both what they need to do to improve and how you will measure / monitor that improvement

Confirm the decision in writing after the meeting using either the appropriate Dismissal Without Notice Letter, Dismissal on Notice Letter  or Verbal-Written-final Written Warning Letter.  HR will assist with the preparation of the letter and will place a copy of the letter used in the employees file.