Author: Daniel A. Lublin
A lot can be discovered just by asking the right questions. That is why I’m truly amazed when employers fail to confront employees with allegations of misconduct prior to condemning them, or worse, terminating them for alleged just cause.
Employees often bemoan the fact they were not provided with “due process” or an opportunity to plead their case prior to discipline being administered. It seems that when serious allegations manifest, employers often respond with a coup de grâce: the employee is shown the door. And, she can forget about her severance.
The simple fact is that every organization should conduct a proper investigation into employee misconduct before choosing whether, and what, discipline should be imposed. If the court finds the investigation was flawed, it’s likely the employee was also wrongfully dismissed. When I act as legal counsel for employees who have been fired for allegations of misconduct, I frequently scrutinize the method and conduct of the investigation performed – assuming one had, in fact, occurred. I look for a flaw or an error in the process and then attack the findings of the investigation. As credibility usually plays a starring role, I also try to find, and subsequently exploit, any doubt in the reliability of the evidence.
Some jurists have gone as far as stating that, where an employee is not given the chance to respond to the impugned conduct, there can be no cause for dismissal. I do not agree, since each workplace is different. In my view, there can be no hard and fast rules for conducting an investigation into employee misconduct. But there are a number of governing principles that should be respected. When these principles are absent, or questionable, my client is more likely to succeed. Specifically:
There should be no appearance of bias or any semblance that the outcome of the investigation was pre-determined.
If there is a workplace policy outlining the nature, scope and procedures for an investigation, it must be followed consistently and applied uniformly. Courts frown on employers who depart from their own promulgations.
An employee who is accused of misconduct should be told of the specifics of the accusations so he or she can respond accordingly. Only providing the employee with generalities is insufficient.
The opportunity to respond to accusations forms a basic part of any proper investigation. An employee should be able to deny the allegations and give his or her version of the events, offer any explanations, and outline any mitigating circumstances.
The information collected must be reliable. Employees who are interviewed to give evidence should be interviewed separately so that their stories cannot be manipulated. Also, the interviewer should make sure that only first-hand evidence is collected so that there is no “broken telephone”.
Importantly, the information collected should not simply be accepted at face value. The evidence against an employee should be tested for inaccuracies and weighted accordingly.
All statements given at an investigation should be thoroughly recorded. Frequently, there are issues concerning what was actually admitted or said. The existence or accuracy of unrecorded statements may be disputed down the road.
When these principles are ignored, courts will often hold the employer responsible for additional monetary damages, in addition to wrongful dismissal damages, if it later turns out the allegations cannot be proven.
Investigating allegations of misconduct