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Investigating Employee Misconduct – The Three Most Common Mistakes

Published August 24, 2017 (last updated December 7, 2020) -

In my role at Employsure, I help employers who have received employment claims from employees. Often these claims have arisen due to flaws in an employers’ processes in running the investigation and resulting disciplinary processes, with these flaws giving rise to strong claims for unjustified disadvantage and unjustified dismissal. These are the most common mistakes that I see reoccurring in these processes.

Pre-determining the situation or outcome

When faced with what appears to be an instance of misconduct or even serious misconduct, a natural reaction for an employer is to confront the employee about what they believe has happened. For example, if an employee is seen on CCTV putting stock into their bag, an employer may react by accusing the employee of stealing. This can create issues for the employer legally, as doing this may be seen as an indication that they have pre-determined the situation.

An employer might also react in the moment and tell the employee they are fired due to their actions. Such a statement may be an indication that the employer has also predetermined the outcome.  This can create legal issues for the employer as evidence of pre-determination can potentially invalidate any process that an employer follows, resulting in a successful claim from an employee.

Although it has been established that employers can make “preliminary enquiries,” they should be very cautious in approaching an employee about a misconduct situation and word any written communications carefully.

Failing to investigate properly

The second most common mistake is failing to investigate properly.  To minimise the risk of a successful claim from an employee, employers must make sure that they take the time to investigate thoroughly, without rushing through this process.

Employers must make sure that they find out the details of what has allegedly happened, interview witnesses, review CCTV footage if applicable and look at any relevant documentation. It is also really important that this evidence is tested and the correct weight is given to each specific type of evidence. Employers should also ensure that the whole process is well-documented.

Holding back relevant information

The third most commonly seen mistake is holding back relevant information and not presenting all the information to the employee prior to any formal meeting taking place.  Sometimes this is done intentionally (where an employer thinks the disciplinary meeting will be the best time to present evidence to an employee) or it may simply be that the employer is unaware that all relevant information, including witness statements, must be given to the employee prior to the meeting.

Another situation which commonly arises is where witnesses have requested to remain anonymous. Failing to name witnesses may mean that the employer’s process is flawed and this may give strength to a claim from the employee, as employees going through a disciplinary should be provided with such information to allow them to properly respond.

Key points for employers

When going through an investigation and/or disciplinary process, it is important that:

  • any communications with the employee and any other relevant parties are worded carefully so that the employer is not seen to have pre-determined the situation or outcome
  • the investigation process is conducted carefully and there is documentation of this, including keeping any hand-written notes. Witnesses should be asked to review interview notes
  • all relevant information is provided to the employee well before any disciplinary meeting taking place
  • the employee should be given proper opportunity to review any evidence gathered and comment on this

For advice on how to properly conduct an investigation of misconduct in your workplace, contact us on 0800 568 012.

About Employsure

Employsure is one of New Zealand’s largest workplace relations advisers to small and medium businesses, with over 5,500 clients. We take the complexity out of workplace legislation to help small business employers protect their business and their people.

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