No investigation, no case
Employers urged to observe due processMonday, June 21, 2021
It is important for employers to conduct a thorough investigation before enforcing discipline in the workplace. The investigatory process is a fact-finding exercise that seeks to gather all information relevant to a case. Therefore, employers should prioritise gathering factual evidence before taking punitive action against employees for alleged breaches of company policy. A failure to conduct a thorough investigation may jeopardise the company's case, even in instances where there is a possible cause to discipline.
The advice of the late George Kirkaldy, in his book Industrial Relations Law and Practice in Jamaica, is very instructive. He stated that, “It is absolutely necessary to gather all the facts before the disciplinary hearing... many times the issues that appear on the surface are not the real ones.” He went further to state that, “There are three sides to a story; those which have been stated by the parties and that which has been omitted, either deliberately or genuinely.”
Employers must be mindful that Part 22 (b) of the Labour Relations Code emphasises the need for an investigation to be conducted before any action is taken against a worker. The section states that disciplinary procedures should “indicate that the matter giving rise to the disciplinary action is clearly specified and communicated in writing to the relevant parties”.
For public sector workers, Section 3.2.3 of the Disciplinary Policy for Public Bodies articulates that a preliminary investigation must occur before a disciplinary inquiry is conducted. The section also states that: The preliminary investigation seeks to establish the relevant facts surrounding the breach. Its scope and depth is dependent on the nature of the breach and should not be confused with the disciplinary enquiry.
Also relevant is section 10.5.3 of the Staff Orders for the Public Service reverberates this point by stating that: “The scope and depth of investigations would depend on the nature of the infraction, and must seek to establish the relevant facts.”
In several instances, employers have breached existing government regulations and the company's disciplinary policy by penalising employees without hard evidence to support the company's case. When the company does not conduct a thorough investigation, or fails to investigate, it may find itself in a disadvantageous position if the matter is escalated to the Ministry of Labour and Social Security (MLSS).
Once it is determined that formal action is required, the next step is to peruse the company's handbook to ensure that the process for dealing with alleged breaches of company policy is clearly defined. A thorough investigation will protect the company from allegations of discrimination or unfair treatment. When a proper investigation is conducted, the investigator should be able to identify if allegations of similar infractions occurred in the past and how they were treated.
Performing an incomplete investigation by failing to interview key witnesses, neglecting to review important documents, or ignoring issues that arise during the investigation can have many of the same negative consequences as failing to conduct the investigation. When companies are inconsistent in this regard the accused employee may feel as if he or she was treated unfairly because of issues unrelated to the case. In such instances, the course of action and penalty for the infraction may be unjustifiable because of the absence of substantial evidence.
The investigation process should not be a witch-hunt. Therefore, objectivity needs to be maintained in two ways. Firstly, the investigator tasked to retrieve documents/reports, interview witness(es) and the accused employee must maintain objectivity. The investigator should not be involved in the case and prioritises the concept of “innocent until proven guilty”.
In some instances, it may be necessary for the company to utilise an independent third party to conduct the investigations, especially for matters that are egregious and extremely sensitive. When selecting an external investigator, the following skills must be prioritised:
• the ability to be objective and unyielding to pressure;
• prior investigative knowledge and good report writing skills;
• knowledge of the company's disciplinary policy and Jamaican labour laws;
• strong interpersonal and communication skills;
• a calm and welcoming temperament
Best practice is to ensure that once a supervisor or manager is involved in the incident they do not conduct the investigation, as this can lead to claims of biased judgement or unfair treatment. The second requirement is connected to the point earlier that the investigatory process is a fact-finding exercise. Therefore, it is expected that management should not attempt to retrieve information that only supports their case. Information should be collected in a neutral manner and shared with the accused employee and his/her representative prior to the disciplinary hearing.
Lauren Marsh is the acting head of the Hugh Shearer Labour Studies Institute, The University of the West Indies Open Campus. Send comments to the Jamaica Observer in lauren.ma r firstname.lastname@example.org.
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