The steps you are required to follow in relation to allegation of misconduct or serious misconduct are defined in our disciplinary procedure policy. These guidelines provide you with tips and advice as you progress through this process.
Out of hours or emergency situations
Sometimes a situation which may require serious disciplinary action occurs out of normal business hours when you have no immediate access to your manager or Organisational Development and Capability. You may believe the person’s continued presence on site poses some risk to people, property or the upcoming investigation. Examples might include risk of; violence, verbal abuse, disruption to the workplace, damage to property or the risk they tamper with evidence needed for our disciplinary process. If you can’t contact your manager or Organisational Development and Capability, discuss the situation with the most senior person you can immediately contact. If you believe their continued presence genuinely is a risk, ask them to leave the workplace until the beginning of the next working day when you have had time to discuss the situation with your manager and Organisational Development and Capability. Tell them this is not a formal suspension but simply to make the situation safe until you had time to take advice.
Purpose:
To establish whether there is any substance to the allegations /complaint and decide on your investigation plan including who needs to be involved, whether you handle it now or delay while people ‘cool off’ or others become involved, and whether suspension might be necessary etc.
Main Steps:
- Advise your manager and involve the Organisational Development and Capability team.
- Get a brief statement from the main witnesses or complainants.
- Assemble any facts or documents supporting the allegation.
- Secure evidence (so it isn’t destroyed or changed).
- Identify the rule / policy/standard etc that’s been breached.
- Document the allegation and what you have done with good diary notes.
- Consider if suspension is required (refer Step 3 for details)
- Agree your plan for the investigation.
- Prepare your “advice to employee” conversation.
Is there enough evidence to proceed?
Having done the initial investigation you need to decide whether to proceed with a disciplinary process. Ask yourself, if it is reasonably likely (subject to further investigation) that there has been misconduct, serious misconduct or continued unsatisfactory performance and that disciplinary action is a potential outcome? If you decide a disciplinary process is not required, some other action may still be necessary e.g. coaching, clear honest and direct conversation or resetting of expectations, performance improvement plan, training etc. Make sure to advise the team member of this outcome and that there will not be a disciplinary process. If you decide to proceed with a disciplinary process then before you advise the team member you need to consider the following.
Are you the right person to handle this?
The principles for deciding who is involved are:
- Our policy is that managers should play the lead role in disciplinary matters involving their team members, including making the final decision as to what action will be taken, along with the appropriate manager with the authority to do so.
- For matters with potential outcomes involving a warning, suspension, or dismissal you should discuss with your manager and involve Organisational Development and Capability in planning the overall process.
- Where you are potentially seen as not reasonably impartial, your team member’s defence may involve allegations he/she has been victimised by you, or you may otherwise be implicated in the matter, talk to your manager about whether it is appropriate for another manager to lead the investigation.
- It is a requirement your team member has the opportunity to talk to the person making the ultimate decision in respect of any proposed disciplinary action before any final decisions are made.
- If the right people are not immediately available, consider suspending on pay until they are if there is a risk the investigation process would be compromised by the team member remaining at work. (Refer Step 3 for details).
Handle it now or later?
If the preliminary investigation satisfies you that disciplinary action, up to or including dismissal, may be warranted the next decision is whether to handle the matter now or later.
Considerations include:
- Is some brief cooling off period required?
- Do you need to collect some more preliminary evidence (before talking to the team member)?
- Depending on the nature of the allegation you might need to get work recommenced so there is no further impact while you investigate further.
- Are the right people available now?
If you need time before beginning the disciplinary process, decide whether it’s OK for them to continue working in the meantime. If not, either isolate them in the workplace until you are ready, or if a longer delay is required consider suspension on pay (refer Step 3 for details).
Next you need to advise the team member a disciplinary process is starting.
When it is determined that the allegation has substance, it is necessary to advise the team member concerned. You should have a witness present and offer the team member the opportunity to do likewise. Use the advice to team member of disciplinary process-conversation plan to cover the following key points.
Inform the team member of:
- The nature of the allegation and the potential impact on their employment if the allegation is sustained.
- An outline of the investigation process including the proposed timetable.
- That they have the opportunity to be represented.
- The fact that the matter will be fully investigated and they will be provided with all relevant information and have the opportunity to respond to this.
- They will have the opportunity to provide a full explanation which will be seriously considered before any decisions are made.
- If necessary, a reminder that they should not attempt to interfere with the course of the investigation or to speak to any other team members or witnesses about the investigation themselves.
- Discuss a suspension if you believe it is required to assist or protect the investigation.
- You should confirm the process is underway with the invitation to disciplinary meeting letter prepared by Organisational Development and Capability.
Should we suspend the team member during the investigation?
Usually the team member will remain at work during the disciplinary process. However, depending on the facts of the situation and the nature of the allegation, there may be good reason to suspend them from work during the disciplinary process. While on suspension, the team member is required to remain available for discussions on the issue. Suspension is not a penalty. It must be clearly necessary to facilitate our investigation – in other words, we must be able to show there was good reason for the suspension.
Suspension is generally on normal pay.
Suspension will usually be on pay, unless the period of suspension extends beyond two weeks due to a police prosecution or investigation, any other third party enquiry or the team member delays or refuses to participate in the disciplinary process. If you think that you may need to suspend a team member, you should talk to your manager and Organisational Development and Capability before you proceed. Remember to check who has authority to suspend.
Suspension policy and process:
Suspension can be justified for one or more of the following business reasons:
- You are concerned the team member might tamper with evidence or intimidate witnesses;
- You are concerned the misconduct might be repeated, putting themselves, others or the organisation at risk;
- In the case of suspicion of dishonest conduct or misappropriation of property, you feel there is some risk to the investigation if the team member remains on council premises;
- In relation to allegations of harassment and bullying, you are concerned witnesses might be influenced by the team members’s presence on site;
- Where you have concerns for the team member’s safety or the safety of others on site during the investigation and disciplinary process;
- A cooling down period is required, for example after fighting or an abusive exchange;
- You consider suspension necessary to protect our operational and business interests.
Procedure for suspension of a team member:
If you believe, for one of the above reasons that suspension is necessary, you must discuss your proposal to suspend with the team member when advising them that a disciplinary investigation process is beginning and before finalising your decision to suspend. This discussion is usually part of Step 2 while you are advising the team member a disciplinary process is beginning.
In addition to the usual elements of that conversation you should deal with the issue of suspension as follows:
- Advise the team member that there is a proposal to suspend for the period of the process and why that is considered necessary e.g. one of the business reasons listed above.
- Invite them to respond to the proposal of suspension but not to the initial allegation, unless there is information they think should be considered.
- Adjourn to consider their comments on suspension and make your decision.
- Reconvene the meeting and advise whether you have decided to suspend. You should make it clear that this is not a punishment and that they will be suspended on pay while a disciplinary process occurs.
- You should advise the team member that they should remain available to the investigation and in the Rotorua District during the suspension period. Confirm with them the best contact number or contact method to reach them.
- The team member should be discreetly escorted off the property if the reason for suspension suggests they should not be unsupervised on the premises.
- Organisational Development and Capability will document the suspension including their response to the proposal to suspension and draft the suspension letter to be issued to them after the meeting.
Carry out a more formal and full investigation to gather details of the alleged misconduct or performance issue. Make all reasonable efforts to establish and confirm the facts. Your investigation should include the following:
- Interview all persons who may have information. You will need to document what they say and preferably get signed statements.
- Obtain all relevant information and documents.
- Keep comprehensive and accurate records relating to the investigation.
- Carry out the investigation in an impartial, unbiased and open minded manner. It is useful to think about what explanations the employee might offer and check these out in advance.
- Try to anticipate any potential defence your team member may make and investigate its likely strength or weakness.
- Document the key elements of the ‘case’ so you are ready to present them to your team member for their response. This includes: what specifically is the rule / standard alleged to have been breached; what facts substantiate that breach over what time; who witnessed the behaviour / breach; what evidence is there the team member knew the rule/standard; is the standard reasonable?; do others meet the standard?; was the team members training and support reasonable? etc.
- Provide all relevant information that you have gathered and that you may rely on in reaching a decision regarding the allegations to the team member before you meet with them.
Note: ‘Anonymous’ witness statements are considered to put the team member at a disadvantage and unless there is extremely good reason for keeping an identity secret relying on secret witnesses will significantly weaken your defense of a justified warning or dismissal. If a person will not put their name to a ‘complaint’, talk to your manager or Organisational Development and Capability about whether and how the investigation should proceed.
Key requirements of the interview are:
Use the investigation interview-conversation plan to prepare for and run this interview.
- Organisational Development and Capability will typically support you in conducting the meeting.
- We may proceed with the process in the team member’s absence provided we’ve made reasonable efforts to contact them and arrange an appropriate time and venue.
- Ensure the team member fully appreciates the significance of the interview and most serious realistic consequences.
- If they aren’t represented, confirm they are waiving their right to representation and that they are happy to proceed with the meeting. If they are not it may be necessary to adjourn the meeting until representation is available.
- Ensure notes of the meeting are taken by another manager or a member of the Organisational Development and Capability team
- Make clear you will require a full explanation about the matter once you have laid out and discussed the evidence. Advise the team member they may raise any other additional information that they consider relevant to the allegation and /or their alleged actions.
- Formally detail the allegation or complaint – and go through all the information you have to support the allegation. If necessary adjourn the meeting to enable the team member to read the information presented in their letter and collate a response;
- Ask for a full explanation and probe with open questions such as: Why? When? Where? What? How?
- Make it clear they have an obligation to answer your questions and account for their actions. If they do not cooperate, explain their actions or answer your questions make it clear you have the right to draw conclusions from whatever information you have without their response
- Let them speak. Listen to what they have to say. Avoid interruptions.
- Adjourn to consider the explanation and check any new information (reasons, excuses, alibis) you received. You may have to adjourn the meeting for a day or more to investigate any new information.
The purpose of this step is to decide ‘on the balance of probabilities’ whether a breach of policy, work rules, standards etc has occurred, and accordingly, that some disciplinary action is justified. Note: The question of what type or level of action to take comes next and should be decided only after taking into account any mitigating factors.
Key elements in the consideration process include:
- If new facts have emerged in the explanation, check them out before making a decision. Ensure any further information you gather, that the team member has not seen, is provided to them for comment and further explanation before you make any decisions.
- If there are differing versions of events then, after investigating as much as you reasonably can, you are entitled to decide which version or explanation is more likely to be true. This is called the ‘balance of probabilities’ test.
- Your consideration must be ‘unbiased’ and ‘objective’ so if the employees explanation is that you provoked their action, you should get your manager to review the situation.
- Your consideration of the findings from your investigation must be made with an open mind. Your decision can be successfully challenged if it is found to be predetermined, biased or not supported by the facts.
Your decision finally is whether, on the balance of probabilities:
- A breach of our standards, Work Rules, policies or a term or condition of our employment agreement has occurred; or
- The behaviour that has been established ‘on the balance of probabilities’ during the investigation is a breach of our values / behaviours.
- Note: The decision you make does not have to be proven ‘beyond all reasonable doubt’ as in a criminal court.
Unsubstantiated allegation
If an acceptable explanation is given by the team member, they should be told this and allowed to resume work on the same terms of employment as applied before the incident arose. When an allegation is unsubstantiated, no action will be taken against the team member. Organisational Development and Capability will confirm this with the team member in writing.
Substantiated allegation
If the allegation is substantiated – a breach of our work rules, employment agreement, standards etc has occurred’ the next step is to consider what level and type of action you should take in response. In making that decision, you will be taking into account any mitigating circumstances.
The actions available are generally reasonably clear and will have been explained to the team member at the beginning of the disciplinary interview. Before deciding on an action, you need to consider whether any of the following mitigating factors are present and might cause you to scale back the action that would typically be imposed. You may also invite the team member to provide any mitigating factors they wish you to consider before making a final decision regarding disciplinary action. Again, the test will you will be measured against if your decision on the action is challenged is “what could a reasonable employer have done in these circumstances”.
Mitigating factors checklist
- Knowledge (did he/she know rules and requirements?)
- Quality of information/evidence (is it sound or shaky?)
- Seriousness (how bad is the problem?)
- Implications (importance of action or inaction on this matter)
- Past practice (history in these cases?)
- Consistency (how have others been handled?)
- Team members work history (good or bad?)
- Frequency (how often has he/she infringed?)
- Time span (how long since last incident?)
- Personal circumstances (how would various penalties impact the employee?)
- Impact – how has his/her actions impacted on the health and safety or work performance of others around them.
Conduct further investigations if required.
Your options
The decision will involve a choice between (in line with the possible outcome identified in the beginning of the process):
First warning
In cases of unsatisfactory performance or the first instance of misconduct a first warning may be given, which will be confirmed in writing by Organisational Development and Capability using the first warning-final warning letter. This warning will make clear the improvement is expected and what the consequences will be if that improvement is not made – use the issuing a warning – conversation plan to assist with delivering the outcome of your process to your team member. Note: The term of the warning depends on the circumstances. Warnings will remain in force for a maximum period of 12 months from the date of issue unless otherwise stated at the time.
Final warning
Where unsatisfactory performance continues after a written warning, or there is a further instance of misconduct after a written warning or the level of misconduct is sufficiently serious to justify going straight to a final written warning, then a final written warning is appropriate. Organisational Development and Capability will use the first warning-final warning letter. Note: The term of the warning depends on the circumstances. Warnings will remain in force for a maximum period of 12 months from the date of issue unless otherwise stated at the time.
Dismissal with notice
Where unsatisfactory performance continues after a final written warning or there is a further instance of misconduct after a final written warning, then dismissal with notice will occur.
- Do not take a decision to terminate until after the final disciplinary interview has been completed (i.e. not before or during).
- If a preliminary decision to dismiss is made, the team member may be given the opportunity to provide feedback on that decision. You may want to give them a short adjournment to consider it (from half an hour to overnight).
- Use the dismissal conversation plan to prepare for and run the dismissal meeting. This meeting can only be done with the presence of a manager supported by Organisational Development and Capability.
- The team member terminated on notice will be provided with a letter or notice stating clearly the reason for termination. Organisational Development and Capability will use the dismissal on notice letter to draft the letter for the manager/group manager to sign. The letter will not be drafted until after the meeting is conducted to avoid any claims the decision was pre-determined.
- The period of notice required to be given will be that specified in the team member’s employment agreement.
- We have the right to pay the team member in lieu of notice, thereby ending the employment forthwith in return for wages/salary equivalent to the required period of notice. This often prevents disruption by the dismissed team member during the notice period.
- Wages and holiday pay are calculated to the end of the notice period.
Dismissal without notice (instant or summary dismissal)
Dismissal without notice (sometimes referred to as summary dismissal or instant dismissal) is appropriate where the offence, once investigated and confirmed, constitutes serious misconduct.
- Dismissal without notice means dismissal without the need for the team member to receive any prior warning or without the need to give the team member notice of termination or payment in lieu of such notice. However, there must still be a proper investigation and process before a decision to dismiss is made.
- If a preliminary decision to dismiss is made, the team member may be given the opportunity to provide feedback on that decision. We may want to give them a short adjournment to consider it (from half an hour to overnight).
- Use the dismissal conversation plan to prepare for and run the dismissal meeting (this meeting can only be done with the presence of a managersupported by Organisational Development and Capability).
- The team member dismissed is provided with a letter stating clearly the reason for dismissal. Organisational Development and Capability will use the dismissal without notice letter to draft for the manager to sign. The letter will not be drafted until after the meeting is conducted to avoid any claims the decision was pre-determined.
- The team member dismissed without notice for serious misconduct will need to be directed to leave the workplace as soon as possible, once a final pay clearance has been completed and council property returned. All outstanding pay down to the point of dismissal will then be made up as soon as possible. Make arrangements about when and how personal belongings will be collected. The team member may want to do this discreetly, especially in open plan office. Where necessary, the dismissed team member should be accompanied when exiting the workplace, but do so sensitively so the team member does not feel further humiliation.
Alternative action
Alternative action may involve:
- Allowing the team member to resign – check with Organisational Development and Capability first and ensure this is at the team members instigation.
- Retraining.
- Changes in duties and responsibilities (e.g. loss of some delegated authority or autonomy). Be sure their job description is amended accordingly and signed.
- Time out, paid or unpaid. May be appropriate for a non-work issue or the team member will benefit from time-off.
- Transfer to another role better suited to their skills and abilities. Document the basis of this. If the change in duties is significant, you may need to get their agreement.
- Agreed demotion including appropriate salary reduction. Involve Organisational Development and Capability and ensure the change is well documented to protect us from challenge.
The following prerequisites are essential before alternative action is contemplated:
- The team member must take ownership of the problem and demonstrate a commitment to building a productive career with Rotorua Lakes Council.
- The team member must be capable of making a positive contribution to the business in the future.
- Both you and the team member must have a shared commitment to making the alternative action actually work.
- The team member must agree to the alternative action proposed.
- The alternative action must not compromise future disciplinary actions.
- The alternative action must not prevent the possibility of eventual termination if the alternative action is unsuccessful.
Details on what the alternative action is, and why it is supported, must be put in writing and be signed off by those with appropriate authority.
Your recommendation
Having considered any mitigating factors you must then decide the appropriate form of disciplinary action. Organisational Development and Capability will assist you with the decision making process. You may decide to talk with the team member before finalising your choice of action. In that conversation you would confirm that your determination is that they have breached standards, work rules, policy etc and give the team member your preliminary view regarding the appropriate disciplinary action. You then invite their feedback and response to this before you confirm your final decision. This approach enables the team member to provide any mitigating factors that they want you to consider when you decide the outcome.
Note: If the action you impose is challenged by way of personal grievance, the legal test you face is whether the action you took is one a reasonable employer “could” have taken in the circumstances at the time the dismissal or warning occurred. The Authority or the Court will not determine a dismissal to be unjustified solely because of defects in the process, if the defects were minor and did not result in the team member being treated unfairly.
Call a meeting to convey the decision to the team member (and their representative). Use the appropriate issuing a warning-conversation plan or dismissal conversation plan. Ensure you cover the following;
- Summarise the original allegations and the investigation steps you’ve taken.
- Outline your findings from the investigation including key evidence and your conclusions and how you reached them.
- Explain the action you propose to impose, or your preliminary decision, and ask for their thoughts. You may adjourn the meeting briefly to allow the team member to gather their thoughts.
- Reconvene the meeting and hear any feedback from the team member regarding your proposal or preliminary decision. Adjourn the meeting briefly to consider their response.
- Deliver final decision.
- If the action is dismissal, explain exactly when termination takes effect, what their final payments etc will be and any arrangements for returning company property
- If the action is not dismissal talk about the expectations you have for improvement in future.
- Ask for their agreement to improve and agree both what they need to do to improve and how you will measure/monitor that improvement.
Organisational Development and Capability will confirm the decision in writing after the meeting using either the appropriate dismissal without notice letter, dismissal on notice letter or first warning-final warning letter. You will provide the team member with the letter. Warning letters may require the team member to confirm receipt of the letter. A copy of the letter will be place on the team member’s file by Organisational Development and Capability.