Conducting an Investigation- lessons from AIRC decisions.

1
Conducting an Investigation- lessons from AIRC
decisions.

• Dominica Whelan,
• AIRC Commissioner
• 17 October 2007.

2
What can we learn?

• What the Commission does
• Who conducts the investigation?
• The rights of the employee
• Responding to the employees case
• Reaching conclusions
• Taking action

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The role of the Commission

• Was there a valid reason for dismissal?
• Was the employee notified?
• Was the employee given an opportunity to respond?

4
Harsh, unjust or unreasonable

• Unjust, because the employee was not guilty of
  misconduct
• Unreasonable, because it was decided on
  inferences not reasonably drawn
• Harsh, because of the consequences, or because
  disproportionate to the misconduct.

5
Necessary elements

• Facts are established
• Allegations are put to the employee
• Reasonable opportunity to respond
• Penalty is appropriate
• Employer followed its own policies, procedures
  and industrial agreements.

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The evidence

• Facts which existed at the time of the dismissal,
  including facts which only came to light after.
• Findings made by an inquiry
• Test is what the Commission finds, on the balance
  of probabilities, to have happened.

7
The employers findings

• Will carry weight if
• b the investigation was full and extensive
• b a reasonable opportunity to respond was given
  to the employee
• b the findings were based on reasonable grounds

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Who conducts the investigation?

• Outside persons
• Not a person making the allegation
• If reviewed, not by person involved in original
  decision
• Not an inexperienced person, or one too close to
  the people involved
• Conflict of interest?

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The employees right to know the allegations

• Need to put critical allegations
• Need to put additional material obtained in the
  course of the investigation/review
• Need to inform employee of possible consequences
• Need to provide key documents

10
Responding to the employees explanations

• Contact persons nominated by employee or who
  give statements
• Follow up information provided by the employee
• Interview all witnesses
• Be wary about accepting assessments made by others

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Reaching conclusions

• Attempt to eliminate alternative scenarios.
• Third hand information should not be relied
  upon.
• Do not rely on personal subjective views.

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The conduct of the investigation

• It is not an inquisition
• Comply with requirements of policies, procedures
  and workplace agreements
• Remember a finding that a termination is not
  harsh, unjust or unreasonable does not prevent an
  employee from arguing that it breached an
  agreement.

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Is the penalty appropriate?

• Consider the circumstances, even if the
  misconduct is found
• Have other employees been treated differently?
• Consider the person involved, their
  characteristics and the impact of termination on
  them.

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In summary

• Investigator - impartial and objective
• All the material should be known to the employee
• Any response followed up
• Conclusions based on evidence
• Is decision to dismiss reasonable?