Conducting an Investigation- lessons from AIRC decisions. Dominica Whelan, AIRC Commissioner 17 October 2007.

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

The role of the Commission Was there a valid reason for dismissal? Was the employee notified? Was the employee given an opportunity to respond?

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.

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.

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.

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

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?

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

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

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

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.

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.

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?