One in six New Zealanders will experience a mental illness at some time in their lives. It is often presumed an employee’s mental illness ...
From our teamAugust 24, 2017
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.
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.
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.
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.
When going through an investigation and/or disciplinary process, it is important that:
For advice on how to properly conduct an investigation of misconduct in your workplace, contact us on 0800 675 700.