Investigating Alleged Misconduct

Most complaints or concerns can be dealt with simply and quickly. Some cannot, and require a fu11 investigation. The following flow-chart illustrates a six-step process which can guide you in undertaking a full-blown investigation of alleged employee disciplinary misconduct:

Step 1. Receive the Complaint/Allegation

The investigation of employee misconduct begins with an allegation or initial concern. It could be that you observe the conduct yourself and decide to investigate it. Allegedly improper conduct may be reported to you by an employee. Another manager could report it. It might be a student or a student's family who reports suspicious or allegedly improper behaviour to you. In every case, you must make an initial assessment of the allegation. Does it justify further investigation? Should you get advice on how to handle this situation? It is always wise to take a cautious approach to investigation.

At the earliest stages, you may have to deal with the following concerns, among others, before you even begin to plan your investigation:

• An employee reports the conduct and wants to receive your assurance that she will not be called as a witness or otherwise identified to the employee under investigation as the person who reported her. Can you give it?
• The allegation involves what might be criminal conduct. Should you report it to the police? When should you notify Campus Security Services and appropriate emergency services (e.g. police, ambulance, Employee and Family Assistance Program) and what are the union representation issues?
• The allegations involve off-duty conduct. Can you look into it further or is it a private matter for the employee?
• There is some question that the employee may be violent. Do you have a duty to warn others of this, particularly if you have no proven facts to go on?
• Should you suspend the employee (with or without pay) pending investigation of the allegation? When is it appropriate to do this?

The questions above are not at all easy ones. Contact Human Resources early. Get as much advice and assistance as you feel that you need even before beginning the investigation!

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Step 2. Plan the Investigation

You probably have a good sense of what is involved in an investigation. You interview people. You gather documents. You question the employee whose conduct is in question. As in an investigation into a financial irregularity, you must know what you are looking for and you must have a plan. Each case will be somewhat different. Careful planning of the investigation is very important to a fair outcome, and is a step, which should not be neglected no matter what the urgency of the situation

The following are just some of the questions you might ask yourself before beginning the investigation:

• Does the collective agreement place obligations on me that I should be aware of before or during the investigation? For instance, you might find out the following:
• Must I give notice orally or in writing to the union or the employee that an allegation has been made?
• Must I agree to the presence of a shop steward when I interview the employee against whom the allegations are made?
• Must I give the employee any particular amount of notice before the interview?
• If the complaint was made in writing, do I have an obligation to provide a copy of it to the employee? To the union? If so, when?
• What other employees, if any, should I interview? Should I allow bargaining unit witnesses to have a union representative, even though they are not under investigation? Are there circumstances in which I might suggest this myself to the employee?
• Do I know enough about the legal treatment of this kind of allegation to know what information to seek and the pitfalls? Should I first get some specialized assistance from Human Resources to ensure that I am on the right track with my questions?
• Should I interview the employee against whom the allegations are made first, or only after I have interviewed everyone else? Should I interview the accused employee twice?
• What documents should I be looking for in this investigation? Should I get them-and study them-before beginning the interviews?
• Several of the documents in this investigation involve employees and may disclose their names.
• How will I deal with this, particularly if I must show the documents to the employee under investigation or to other persons?

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Step 3. Search and Gather Information

Having planned your investigation in the previous step, you now carry it out. This part of the investigation is intended to get at the facts. You can do the following, not necessarily in this order:

Interview the complainant(s), assuming there is a complainant. Sit down with the complainant in a private and unhurried session and get the full story. Ask for any relevant documents, erring on the side of receiving more rather than fewer than you really need.  If the complainant is a member of a Union, they should have the opportunity to be represented as well, even if they are a member of the same Union as whom they are complaining about.   On occasion they may be asked if they are willing to provide a written statement based on their personal knowledge. If not, ask if they are willing to sign a statement that is created based on your own notes of the interview. ~ Remember to sign and date all documentation.

Interview all other witnesses. In this context, witness means any person who may have information about the events you are investigating. It does not need to be an eye-witness: In fact, most witnesses in legal proceedings are not eye-witnesses to the crucial event, but have relevant information that surrounds it. Once you have finished interviewing the witnesses, you may ask them to identify other persons who may have knowledge. Then interview those people.  As with the complainant, on occasion it may be necessary to get a written statement.

Search and gather all relevant documents. This is an exercise which you perform as you go along. Depending on the situation, these could include the following:

• time, attendance or payroll records, unusual incident reports, or any of the myriad of written reports and records in the University setting
• collective agreements, statutes, policies, rules, handbooks, job descriptions, and other materials which might identify the standard of conduct which is expected of the employees in the circumstances under investigation
• the personnel file of the employee under investigation, including but not limited to the discipline record
• previous awards involving the University which might be expected to have come to the attention of the employees

Meet with the Employee concerned and get his or her side of the story. This may seem obvious as you have an obligation of fairness to ensure that you have the employee's views. You will usually want to confront the employee in a non-adversarial way with the allegations and allow the employee to make full answer.   This meeting should take place as soon as possible after you have gathered the necessary information from other sources.  You may wish to interview the employee more than once during the investigation if you believe this is necessary.   Meetings with employees that may lead to discipline typically require proper notice and Union representation. Below is a listing of things to keep in mind during such meetings:

• Unless inordinate delay will result, you should have another excluded university representative present to take detailed notes to prevent disputes about what was stated in the interview.
• Provide the employee with a sufficiently detailed description of what the employee is said to have done or what your concern is to allow the employee to provide a full response or explanation.
• You are not required to answer detailed questions from the Union or the employee about the allegation or incident under investigation that would prejudice your investigation. However, you are required to answer reasonable questions that allow the employee to provide a full response.
• Ensure the employee is provided every reasonable opportunity to provide a full response and/or explanation.
• Ask clarifying and open ended vs. leading questions to ensure you have a full understanding.
• Depending on the circumstances of the case, determine whether nor not the employee agrees that s/he was aware of the standard of conduct that was allegedly breached.
• Establish how the employee was aware of the standard (e.g. policy, etc.) If the employee denies the allegation, ask for an explanation of the incident from the employee's point of view.
• Ask the employee if there are any other matters that s/he wants to tell you about that you should consider.
• End the discussion by advising the employee that you will be continuing your investigation, that they will be advised of your decision, and that there may be disciplinary action. You may need to advise an employee not to discuss the matter with anyone other than their Union and you may have to direct that they not attempt to approach others (e.g. a complainant).

Record the results of your interviews. It is preferable that you take notes during the discussion, but if you feel that you can’t and are unable to arrange for another supervisor to do so then, make your interview record immediately after the interview is complete.  You should be aware that as these are investigation notes, the other side to any future dispute will likely be able to demand copies of these records if the matter goes to hearing.  As with a complainant or witnesses, on occasion it may be necessary to get a written statement.

Consider any Mitigating Circumstances.  Also verify, to the degree possible, the employee’s explanation.  Consider how long the employee has worked for the University without any adverse reports on file.

Comply with all Collective Agreement provisions. Violations of fundamental obligations of procedure under the collective agreement during an investigation, no matter how innocent, can result in discipline being disallowed by an arbitrator.

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Step 4. Assess the Facts

Your investigation is intended to provide you with a clear picture of the facts of who, what, when, where, why, and how. You can then consider what the implications of those facts are, including the question of whether and to what extent discipline may be imposed on the employee. Finding the facts is not a science-it is an art. It is part detective work, part intuition, part observation, and a lot of hard work. But it is a task that must be done, and done well, before an investigation can be considered complete.

Finders of fact are often confronted with different stories. Key witnesses, even eye-witnesses to a critical event, see things differently. One of the major challenges for a fact finder is to determine credibility.

Measuring credibility is not merely deciding who is telling the truth and who is lying. Arbitrators rarely find that someone is actively lying on the witness stand. Instead, they accept that most people are telling the truth as they know it, or as they have convinced themselves of it. It happens that some people know the truth and tell it, and others do not know the truth but are equally forthcoming in relating it.

If you are going to find that someone is not telling the truth, you should be able to say why you believe this. Of course, such a finding is not necessary in order to reject a story. It is more likely that you will find that a story does not measure up to the probabilities, even if the witness is telling what they believe to be the truth.

When attempting to determine whether a person is relating an accurate story, you can look to the following factors for assistance:

• What is the witness's demeanor like? Did the witness have a forthright and convincing manner of telling the story? (Note that it is dangerous to rely on this alone-- some people are convincing without being accurate)
• Did the witness have a bias or self-interest, which might taint the story?
• Was the story reasonable?
• Did the story have internal consistency? Did the pieces hang together, or were there things out of place?
• If the story was told more than once, did the story remain consistent?
• Did the witness have the capacity and opportunity to see the events unfold in the way that they have described? (An extreme example to make the point-could a legally blind person really recognize anyone from across the football field?)
• Is the story told by the witness inherently probable or not? Which of two or more stories, if they differ, is more probable in view of all of the circumstances?

In your investigation, you must strive equally to find both the innocent answer and the guilty one. You must be as open to an innocent explanation of events as you are to a guilty one. The more serious the offence, the more convincing must be the proof. Where the offence is so serious that the employee's career would effectively be over, you must be very satisfied that the event occurred.

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Step 5. Decide the Discipline

Step 5(a). Decide on Discipline-First Key Question: Has the Employee Given Just and Reasonable Cause for Some Form of Discipline?

If the current matter leads to termination, and if it proceeds to arbitration, the arbitrator will pose and answer the following three questions:

• Has the employee given just and reasonable cause for some form of discipline by the employer?
• If so, was the employer's decision to dismiss the employee an excessive response in all of the circumstances of the case?
• Finally, if the arbitrator does consider discharge excessive, what alternative measure should be substituted as just and equitable?

Borrowing from this test, which is applied in a modified fashion to all disciplinary penalties short of termination, you will have the following two key questions to answer before communicating the results:

1. Has the employee under investigation given just and reasonable cause for some form of discipline, and;
2. If so, what is the appropriate measure of discipline?

First, has the employee given just and reasonable cause for some form of discipline by the employer? In Step 4; you made the judgment about whether the employee actually engaged in the conduct, which triggered the investigation. In many cases, this finding will largely dispose of the issue of whether discipline is warranted. This may be particularly true in cases such as theft, abuse, serious insubordination, and assault of another employee. In some cases, however, the fact that conduct is improper may not be self-evident. It may require a close judgment about whether the conduct is truly disciplinable.

Did the employee clearly know that the conduct was inappropriate? When considering this question, you may have to consider carefully the following factors:

• Has your investigation disclosed the standard of conduct that is binding on the employee and how this standard was made known to the employee?
• The sources of the standards are varied. Collective agreements will often contain provisions, which identify standards of conduct. Employer policies, rules and handbooks are other useful sources of standards. Job descriptions often spell out features of a position that are highly relevant to a consideration of alleged misconduct.
• Employees in the University are often bound by statutes to certain standards of conduct. As well, arbitration awards involving the University can identify standards and be binding on employees, particularly where they have received wide circulation.
• Finally, the knowledge of the standard and its seriousness may have been imparted' to the employee in previous disciplinary or non-disciplinary settings. Whether or not an incident or communication forms part of a formal disciplinary record, did a previous communication bring to the employee's attention that he or she must behave in a certain way?

Does the conduct of the employer absolve the employee?

• Has the Employer done, or not done, something, which can prevent it from issuing discipline to this employee, even if it is otherwise fully deserved? These questions relate back to what employees can reasonably expect from their supervisor.
• Has there been such a delay in the investigation either commencing or proceeding that it might now be unfair to discipline the employee? Has the University or a representative somehow condoned the discipline by having knowledge of it without acting? Has a supervisor already spoken to the employee about the conduct, therefore preventing further discipline because of double jeopardy principles? Is there a time limit in the collective agreement for action after the discovery of an offence?
• Has the supervisor provided a clear statement of the employee's role and responsibilities (by way of a fulsome job description, for instance)? Has employee been given proper orientation and training during their probation/trial period? Have the University and department rules been clearly communicated? Has the supervisor given sufficient coaching and feedback?
• Another way in which discipline may not be reasonable is if the University has not been consistent in its handling of identical or substantially similar cases. Is there a consistency problem? How does it affect this particular case? Can you discipline in this instance or must you first warn?

Is the conduct non-culpable?

• We earlier discussed the difference between culpable and non-culpable conduct. If the conduct, while impermissible, is non-blameworthy, you will have to find some other means other than discipline to correct it. The employee may, by reason of illness, disability, or incapacity, for example, be simply unable to correct the conduct. This calls for non-culpable means of rectifying the situation (please see page 34).

Is the conduct off-duty and beyond the purview of the employer?

• Is the conduct, which occurred off-duty private conduct, or does it subject the employee to the discipline process? A "Yes" answer to any of the following three questions justifies employer intervention, but focus primarily on the third question in resolving this issue: (1) Was the employee's conduct sufficiently injurious to the interest of the employer? (2) Did the employee act in a manner incompatible with the due and faithful discharge of his duty? (3) Did the employee do anything prejudicial or likely to be prejudicial to the reputation of the employer?

Will a non-disciplinary warning accomplish your objectives?

• With the advantage of the full results before you, are you uneasy or uncertain about whether the case justifies discipline? If so, consider whether a non-disciplinary warning will accomplish your objectives. Get advice as you see fit.

What are the Mitigating Factors?

Next, you need to consider the so-called mitigating circumstances--Alist of factors to have in mind when considering the ultimate penalty of termination. The most controversial form of discipline is of course termination. Terminations typically occur in two circumstances, either where an incident is so serious that in itself it justifies termination, or where an incident, while not in it self calling for termination, justifies termination on the basis of the employee's previous disciplinary record.

In termination cases, arbitrators consider a number of mitigating circumstances to decide if the discipline was appropriate. Many of them are applicable to less serious disciplinary sanctions as well and so you should consider them even if termination is not being considered. The following is not an exhaustive list of mitigating factors, but it is essentially the list used by arbitrators in arriving at decisions on terminations specifically and other disciplines more broadly:

The Nature of the Offence (Its Seriousness)

This refers to the inherent seriousness of a particular offence. Although there are few if any offences which arbitrators will consider justify immediate termination without any consideration of rehabilitation, some still stand out. They include theft, serious abuse, and serious criminal assault. You will recognize that even in these cases there can be a very significant question of rehabilitation. Termination for a single, first offence must be carefully considered because arbitrators will be very careful to determine whether the employment relationship can be repaired.

The Seriousness of the Offence in Terms of the Employer's Policies and Obligations

This subject is somewhat repetitious of another topic mentioned later in this paper. The focus here, however, is on whether the conduct offends specific policies or obligations of the university. Is the conduct discussed in university policies, procedures, or any of the other types of documents that you hunted down in your investigation? Even if not, how serious is the offence in terms of what your university is seeking to accomplish?  In terms of your obligations to the public? This includes a consideration of the impact of the misconduct on the university’s reputation.

What is the impact of the misconduct on other employees? Does the misconduct cause employees to lose morale? Does it cause them to fear for their personal safety or belongings? Does it cause them to refuse to work with the alleged wrong-doer? Depending on the circumstances, these can be vital questions.

What other impacts does the conduct have on the operations? What chain of events can be started by the misconduct? What resources are consumed in having to guard against it? If this matter ultimately comes before an arbitrator, that person will want to know the impact of the conduct in the real-life setting of the University.

The Record of the Employee

What is the employee's discipline record? This is of course a critical question in determining whether termination may be warranted in many cases. Watch to ensure that the collective agreement does not prevent you from taking a particular item of discipline into account because of a sunset clause. A sunset clause is a provision that removes previous discipline from consideration after a stipulated period of time. Be careful about this because discipline based on previous discipline that has been improperly considered would almost certainly be varied by an arbitrator.

But the disciplinary record is not the only record that can be taken into account. The employee's non-disciplinary work record may also be relevant to the issue of penalty. It can have particular significance in cases of dismissal. Where the employment history is characterized by neglect for duty and disrespect for authority, reinstatement is less likely if the matter proceeds to hearing. By the same token, a work history characterized by loyal and diligent service will increase the prospects that the employment relationship can be restored.

The Long Service of the Employee

In most circumstances (but not all) a good, lengthy work record stands to the employee's credit. This does not refer to a record that is bare of discipline only because of the operation of sunset clauses (see paragraphs just above). An employee who has a bad record of this kind cannot refer to this factor in his or her favour before an arbitrator.

Whether or Not the Offence Was an Isolated Incident in the Employment History of the Employee

People make mistakes, sometime bad mistakes. This factor tempers justice with mercy where the misconduct is clearly out-of-character for the employee.

Provocation

Was the misconduct in some way provoked? This may lessen its seriousness. This factor is often very significant in insubordination cases.

Evidence That University Rules of Conduct, Whether Unwritten or Posted, Have Not Been Uniformly Enforced, Thus Constituting a Form of Discrimination

You will recognize this factor from an earlier stage. Like offences must be dealt with in a like manner. If the University has not enforced a particular sanction in the past, there may be a serious question about whether it can do so in this case without first notifying the employees generally about its seriousness:

By the same token, you must be very careful not to mistakenly assume that two cases are the same and therefore require identical treatment. Two employees who misconduct themselves in identical fashion may legitimately receive different discipline depending on a number of factors, including their disciplinary records.

Was It Spur-of-the-Moment Misconduct? or Was it Systematic and Repetitive? Was It Premeditated, Planned and Deliberate?

These factors apply most specifically to issues of dishonesty. The issue is whether the University will be able to trust the employee to act honestly in the future. Answering these questions can help make that determination. If the dishonest event was planned, and deliberately carried out with some knowledge of the consequences, this is much different than a spur-of-the-moment act that the employee truly regrets.

Did the Misconduct Involve a Breach of Trust?

This factor looks at the impact of the offence. Was it a breach of an essential trust between the employee and the employer? Or between the employee and the public? Or between the employee and co-workers? Or did the employee lead another employee into misconduct and put that other employee's livelihood at stake?

Failure of the Employee to Apologize and Settle the Matter After Being Given an Opportunity to Do So

This is a very important factor in dishonesty cases. An employee who does not acknowledge a theft or similar act at the earliest opportunity may be a poor candidate for reinstatement if a termination is taken to arbitration.

Failure of the Employer to Permit the Employee to Explain or Deny the Alleged Offence

This is self-evident. The employer must allow the employee to explain, or attempt to explain, the event.

Bona Fide Confusion or Mistake by the Employee As To Whether He or She Was Entitled to Do the Act

This relates to the earlier discussion about whether University policies or other documents or events have brought to the employee's attention that certain conduct is wrongful. This does not at all mean that an employer must always have a policy in place before taking action against misconduct. For example, arbitrators have confirmed that it is unnecessary to have a policy against theft before taking action, as employees do not need to be instructed that they must not steal.

Employee's Inability, Due to Drunkenness or Emotional Problems, to Appreciate the Wrongfulness of His or Her Act

This factor has become more prevalent. To cover it comprehensively would require special treatment in a workshop all its own. For now, it is important that you consider whether such a factor is present, and take advice if it is. Diminished capacity to appreciate the nature and consequences of an act can obviously result in a sense of diminished responsibility by an employee.

Relatively Trivial Nature of the Harm Done

This is a factor that calls on you to put the offence in perspective and not simply proceed in all cases on the footing of high principle. In some cases, if little harm has been done, and the employee recognizes the inappropriateness of the conduct, arbitrators will be moved by this factor.

Employee's Future Prospects for Likely Good Behaviour

This is an exceptionally important catch-all factor in dismissal cases. Discipline is intended to be corrective, until the correction process is finished. Arbitrators wish to be sure that the employee has reached the end of the line. If the employee has good prospects for future good behaviour, an arbitrator may be well inclined to restore the employment relationship on a last chance basis.

One of the critical factors here (which has certainly raised its head elsewhere as well) is whether the employee knew that his or her conduct was improper at the time of its occurrence. Another key factor is whether the employee has violated a commitment that he or she may have given to the Employer in another, previous situation.

It is in this area that the non-disciplinary aspects of an employee’s work record can have great importance. Is the work record of the past, including attendance, attitude, and performance appraisals, a good predictor of the future? If not, what has changed in the employee's attitude or approach to the workplace?

What resources were available to the employee in the workplace that the employee did not utilize? Is it relevant that an alcoholic employee knows of but never uses an employee assistance program? What is it about the current situation that implies changed behaviour in the future?

Extraordinary Economic Hardship

Arbitrators may take into account whether termination will result in extraordinary economic hardship for the employee.

The foregoing is not a complete list. Nor do all of the factors mentioned in it have application to all cases. Some, like those dealing with recognition and apology, have their greatest impact in theft and dishonesty cases. Others may have greater application in patient abuse situations. In any case, the exercise of considering the mitigating factors is a very important step prior to deciding and communicating the results.

Step 5(b). Decide the Level of Discipline-Second Key Question: What is the Appropriate Measure of Discipline?

You have decided that the event occurred and that it justifies discipline. How much discipline? Keep in mind that at all levels of discipline, procedural obligations (such as Union involvement) must be followed. Subject to the specific provisions of the Collective Agreement , as well as thorough review of the above-noted questions, the disciplinary sanctions available to you may include the following:

This is often the first step when the conduct in question is a minor infraction. Examples include lateness, minor breach of policy, quarrelling with co-workers and very minor insubordination. The purpose of the verbal warning is to ensure that the employee is spoken to and to make clear that any repetition of the conduct will result in greater discipline.  The supervisor should put a note in their own working file, not in the employee’s personnel file.

These may or may not be preceded by a verbal warning depending on the seriousness of the misconduct. They may be appropriate if one or more verbal warnings have been ineffective to correct employee misconduct.  The written warning should follow an investigation meeting and:

• give details of the incident, unacceptable behaviour or performance which has occurred;
• refer to any previous problems and progressive discussions which relate to this situation;
• report back the employee's explanation or lack thereof;
• explain what actions are to be taken to bring about improvement and what follow up actions the supervisor intends;
• state clearly that repetition may lead to more severe disciplinary action and indicate follow-up action to be taken;
• be copied to the employee file as well as the Union.

This suspension usually lasts from one to three days. It may be imposed for more serious offences, such as deliberate damage to property, or absenteeism without an acceptable excuse, or where a verbal or written warning has not succeeded. The purpose of short-term suspension is to bring home to the employee that the employer has a serious concern about the employee's behaviour and that repetition could result in further, more serious disciplinary action, including termination.

This involves a suspension of one week or more. It is normally issued when lesser forms of discipline have failed to bring about a change in the employee's conduct or where the misconduct is so serious as to justify a very serious suspension. This type of suspension may be appropriate for conduct, which occurs repeatedly, such as fighting, on-the-job intoxication, gross negligence, and gross insubordination. It is intended to convince the employee that her or his job with the employer is in serious jeopardy and that employment will be terminated if the conduct is not immediately corrected.

Suspensions of any length are confirmed in writing and will include, as well as the items noted above, the duration (start and end date) of the suspension, as well as any conditions that may be imposed upon return to work.

This is the end of the road. You must be sure that you have carefully studied the case to determine the prospects for success.

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Step 6. Communicate the Decision

The decision has been made, and it is now time to communicate it to the employee. You will wish to consider the following checklist before carrying out the communication:

What, if anything, does the collective agreement say about the following?

• whether the communication is to be oral or in writing?
• confirm that the Union and employee file are copied on the communication?
• what is the timing of the communication; are there notice provisions?
• any requirements for the presence of representatives during the communication process?
• any other collective agreement issues arising in this context?

• Meet in a private location - sometimes away from the immediate work site is best.
• Ensure that all the required parties are there including a Union steward and, where practical, a management witness.
• Plan the content so that the meeting remains on the subject.
• Keep the meeting short and to the point.
• Present the results in a respectful and professional way.

Consider the following questions:

• Are there any available university precedents for this kind of communication which can assist you?
• Apart from collective agreement concerns, are there any legal concerns respecting the content of this particular communication?
• In the circumstances of this particular case, should the communication be lengthy or short and to the point?

Discipline is normally a personal and confidential matter, and it is very rare that co-workers would be advised of such.

• In cases of termination of employment, please work with your Human Resources Consultant in developing an appropriate notice to co-workers and others.

As with any good management practice, monitoring and follow up is not just advisable, it is essential to maintaining the intended effectiveness of the disciplinary sanction. For example, should the situation involve culpable non-performance, which is to be reviewed at some future date, ensure that you follow up exactly as you declared in the discipline Failure to do so may well adversely impact any future management action.

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