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Employment Law Procedures and Policies

Workplace Investigation and Disciplinary-the Danger of an Overemphasis on Looking for Imperfections in the Procedure

workplace disciplinary procedure

Dmitri was suspended from work for allegedly assaulting a colleague. Susan was suspended on pay while an investigation was being carried out into approximately half a dozen allegations of misconduct.

When they came to me for advice they were very much focused on the procedure adopted by the employer to date. Too focused, in my view.

Let me explain. They had done a bit of research online about disciplinary procedures in the workplace, the entitlement of the employee to fair procedures and natural justice, the importance of any investigation and disciplinary procedure being carried out fairly, and so on.

That’s fair enough.

But it is an easy mistake to get preoccupied with employment rights. These rights may stem from the constitution or statute or the contract of employment.

But remember the employer, too, has rights. And the right to investigate alleged wrongdoing in the workplace is one of them.

Now, Dmitri and Susan in their initial discussion with me were focused on seeking any imperfection or infirmity in how the employer had acted up to that point. I believe that was a mistake and they might have been better advised to address the substantive allegations against them.

But you must not ignore the substantive allegation against you and you must spend as much time addressing this as seeking imperfections in the procedure adopted by the employer.

Because they were so focused on finding imperfections in how the employer had acted in applying the procedure that they had overlooked the allegations against them.

Even though they have rights to fair procedures in respect of the application of the disciplinary procedure I do not believe perfection is required of the employer. Sure, it must be sound and fair and transparent and in accordance with the procedures set out in the workplace.

But the absence of perfection, or a small infirmity in the steps taken, may not be enough for an employee to ground a claim for unfair dismissal on the basis that the procedure lacked natural justice if the allegation is a serious one such as assaulting a colleague to telling a customer to stop “wrecking my head” and “do one”.

Takeaway

My advice is if you are facing serious allegations like Dmitri and Susan is not to get too preoccupied looking for flaws in the procedure adopted to the detriment of addressing the serious allegation against you.

Because employers, especially small ones with finite resources, will not be held to a level of perfection in enforcing discipline in the workplace.

Yes, you are entitled to fair procedures; yes, you are entitled to natural justice; yes, you are entitled to fair play.