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 employee’s case • Reaching conclusions • Taking action

3. 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.

6. 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 employer’s findings • Will carry weight if: ƀ the investigation was full and extensive ƀ a reasonable opportunity to respond was given to the employee ƀ the findings were based on reasonable grounds

8. 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?

9. The employee’s 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 employee’s explanations • Contact person’s 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

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

12. 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.

13. 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.

14. 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?