Item 4 of the Code of Good Practice to the Labour Relations Act, 1995, in dealing with fair procedure, provides that “Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal.”

However, it is an area that is often overlooked by employers alternatively, approached in an adequate manner, at times resulting in irreversible negative consequences both for employer and employee. 

Whilst there is a need to act within a reasonable period of time following an employer becoming aware of an incident of alleged misconduct, it is equally important to act in a manner that is prudent, measured and practical. 

Too often, there is the urge by employers to hastily pursue suspensions and consequent disciplinary steps and as a result, such employers may fail to carefully consider the available evidence or consider the need to conduct a methodical and thorough investigation first. 

Acting with haste against the background of a poor investigation or the complete absence of an investigation, may result in adverse reputational consequences for the employee (who may have been suspended or dismissed) in cases where there was in fact not enough evidence to sustain the allegations against the employee.

Both employer and employee are then placed in a difficult position whereby the employer’s hasty action has created a strained working relationship, to the point of making any prospect of continued employment or a continued relationship impossible. 

Sometimes, such suspensions and disciplinary steps are motivated by ill-considered factors such as personality clashes, a conflation of misconduct and performance issues, ill-health issues, or even considerations of business expediency – to mention a few. Had the employer conducted a proper investigation and carefully considered the available evidence and the nature of the problem, the correct course of action could have been selected.   

The difficulties and risks of a poor investigation include:

1. Presenting a case at a disciplinary enquiry without having the best possible evidence, leading to claims of victimisation by employees.
2. Pursuing an employee on incorrect grounds – for example, addressing a matter as a disciplinary matter when it needed to be dealt with as a poor performance or incompatibility issue.
3. Facing the difficulties of trying to lead new evidence at any subsequent arbitration, such as at the CCMA.
4. Litigation costs associated with defending a dismissal at the CCMA or Labour Court.
5. The employer may end up having no negotiating power in respect of any settlement negotiations or negotiations aimed at a mutual separation. The employer is placed on the backfoot because its unsubstantiated conduct may appear to be aimed at victimising the employee. Subsequent attempts to rectify the real reason for the disciplinary action may then appear to be contrived.
6. Running the risk of having an arbitrator find that the evidence is inadequate and thus granting the primary remedy of reinstatement, alternatively compensation.
7. The employer losing credibility and confidence in respect of reinstatement award which may be made.

A thorough and professional investigation can assist the employer in protecting its employees and its own business and reputation. A well-co-ordinated investigation may exonerate an employee of any wrongdoing and ensure that employee’s reputation (inside and outside of the organisation) is protected.

Where there seems to be a sufficient basis to suspect that an employee may have committed misconduct, but it is difficult to properly investigate this whilst the employee is present in the workplace, the employee may be suspended on full pay, and should be given some reason regarding why he / she is being suspended and the nature of the investigation. Employers should therefore act with circumspection and careful planning before instituting disciplinary steps, especially where dismissal is contemplated.

Author
Hoosen Wadiwala