The investigation phase is merely an information-gathering phase and as no decisions are made in this process natural justice does not apply, however the bias aspect does. So no bias must be demonstrated during any stage.
The disciplinary stage however is where natural justice must be observed strictly, no decision can be made which has an adverse affect on a person without that person having an opportunity to defend themselves, this is the “right of reply”.
This is also known as procedural fairness, however some argue that there are differences between the two terms. The essential elements of natural justice are as follows:
- No bias, and
- The right to be heard
Procedural fairness however, it has been argued covers more than just the decision making process (where a decision may be made that has an adverse affect on a person). Procedural fairness requires the employer to be fair at all times during a process, from providing sufficient time to respond, to allowing a support person to be present during interviews and following the employers own policy framework.
It is certainly best practice. Without a discipline or misconduct policy employees will be unclear about expectations, process and the consequences for misconduct. If you have not been clear through the promotion of policies that deal with misconduct, discipline or investigations your staff may later claim that they had no guidance and expectations were not clear.
If you provide the person accused of the misconduct a letter which outlines what the allegations are, when they have been alleged to have occurred, when and where the interview will be conducted, that they can bring a support person and have provided them enough time to attend (2-3 days notice) and arrange a support person, then you have complied with your obligations to provide natural justice and procedural fairness.
You are required to let that person know, with sufficient particularity what it is that they have been accused of so that they can prepare for an interview.
The first thing you should consider is why these persons names were not provided to you during the investigation.
You cannot control this, however good lawyers understand this process and can be useful in speeding the process up. If you are being challenged however on matters that are outside your expertise you may need to engage a lawyer to represent your business interests.
Discipline varies depending on the circumstances of the case, the more serious the matter, the more serious the penalty. A persons employment history must also be considered, as should their personal circumstances such as health, family situation and so on. Whilst employees should not bring private issues into the workplace, it does have an impact on how a person deals with work issues. Disciplinary outcomes can include:
- Reprimand;
- Loss of one or more pay increments;
- Monetary fines;
- Demotion either permanently or for a period of time (1-2 years);
- Termination.
After you have provided the person with your investigation report or memorandum and other relevant documents, they should be provided with sufficient time to respond in writing, this varies between 10, 14 and 21 days. It may be subject to your own policy framework.
Natural Justice requires that a person that is facing potential disciplinary action, must be provided with the same materials, whatever they are, that the decision maker is relying on to make his/her decision.
If the conduct does not require a formal disciplinary process, a manger can issue a warning or a caution, implement training or one on one coaching. The point being to rectify the behaviour and allow the employee to move on and learn.
This is a judgment call based on many factors. For example if you record an interview it’s safe and it saves time, but you will need to make a file note or a summary of the interview so it can be annexed to the investigation report. In some cases you may wish to have an interviewed transcribed word for word, but this comes with a cost. Statements however are useful if the witness is some distance away or the information that they can provide is not controversial, simple and not in dispute.
That on the 3rd of March 2014 you are alleged to have assaulted Mary Campbell during an argument
That on the 5th of June 2014 you were observed removing bottles of wine from the managers office.
That you assaulted a staff member.
That you stole from the company.
If you provide the person accused of the misconduct a letter which outlines what the allegations are, when they have been alleged to have occurred, when and where the interview will be conducted, that they can bring a support person and have provided them enough time to attend (2-3 days notice) and arrange a support person, then you have complied with your obligations to provide natural justice and procedural fairness.
You are required to let that person know, with sufficient particularity what it is that they have been accused of so that they can prepare for an interview.
You may hear that this is a denial of natural justice or procedural fairness; you can be assured it is not. As the investigative process is no more than an information gathering exercise, you are not required to provide the information you have at that time. If the person is to face discipline at a later time, then they will be provided with all the relevant information and given time to respond.
You should provide this to the person accused of misconduct, but delay proving copies to other persons until you have completed your investigation. If not you will risk people sharing their interviews and tainting the evidence they can provide you with. If you have doubts about the intentions of the person accused of the misconduct, then also delay releasing that recording until your investigation report has concluded. Doing this is NOT a denial of natural justice of procedural fairness as no decisions have been made and no discipline is being considered, you are just protecting the integrity of the investigation.
The most reliable and effective way is to use a digital recorder, they are relatively inexpensive and the quality of the recording is quite high.
Always record your interviews with the person accused of the misconduct and consider recording any witnesses or complainant interviews that might be controversial, or in cases where there is some doubt about a persons honesty.
There is no legal requirement for you to do this, however it is best practice. The practice itself protects all parties and there can be no misquoting or allegations of bullying or intimidating behaviours if the entire interview was recorded electronically.
No, if poor performance and low-level misconduct can be dealt with managerially, then this is a preferred option.
However, if discipline is being considered you will need to base your decisions on something more substantial than e-mails or file notes.
To ensure fairness, to support any discipline recommendations, compliance with applicable legislative obligations and to identify and deal with systemic issues.
There is no actual time limit, however you must be reasonable, so it would be likely that some weeks or even a few months might be required. You are not expected to accommodate a person for an undetermined period of time, this would be an unreasonable impost on the organization.
No, this is poor practice, the persons manager knows what their work outputs should be, knows how they have been performing and they are therefore the best suited to conduct the process. Only in extreme circumstances should a departure from this be considered i.e. the sudden departure of the person managing the process.
It finishes when either the employee’s performance has improved sufficiently for you as the manager to no longer be concerned. Or, where it has been decided that the performance issues have deteriorated further or not improved even with support and time to engage, and termination is now being considered.
As soon as you see a problem, but it does not need to be a formal process straight away, perhaps a quick word to the person will correct the issue, make a note of it and move on. But always take initiative and deal with issues early, it helps to manage difficult matters later on with less stress and anxiety.
Yes, consistency is essential, if not you run the risk of being accused of being discriminating and the employees with agreements may feel marginalized.
Under no circumstances should you approve a person’s probation report whilst they are not performing. You should consider extending the probation period or not confirming the appointment based on non-suitability issues, covered by the probation period.
You should always make notes of your conversations with employees that are involved in a performance management processes, and this can also be achieved by using a well-structured template.
Yes it does, however like most things it’s about commitment. If both parties commit to the process then it can be a productive process. If on the other hand there is no commitment to the process then the performance issues will continue and develop into more critical workplace issues.
This will depend on the situation, however if you find that a person simply needs training and mentoring then this is likely to be within your capacity as an employer. If the employee is struggling to cope with a changed process, where previously they performed well then you really ought to make every effort to assist them through this process. If however, after all reasonable efforts have been made to assist a person perform to a satisfactory standard, and they are still not meeting their targets or agreed performance standards, then you are within your rights to consider the termination of the employee’s contract.
Meet with your staff regularly and set up performance meetings 6 monthly. Well-structured processes run on a yearly program, with a 6-month interim meeting to ensure that targets are being met. The key to this however is communication, continue to talk to your employees, don’t allow problems to fester and build up.
Employers and employees need to understand what is expected of each other in the employment relationship. This is impossible to articulate if there’s no agreement or expected standards of performance or conduct. When issues present, the employer can use a performance agreement to help the employee return to being productive, or if after reasonable efforts have been made to support that employee through the performance management (or improvement process), termination is to be considered (assuming no improvements).
No, in fact it is best to always endeavor to deal with matters at their lowest level.