Essential Guide: Investigating Staff Misconduct Complaints

Investigations of staff misconduct complaints, including workplace bullying can be difficult. It is important to carry out your investigations in a reasonable manner: below is a guide on how to best investigate staff misconduct complaints, including workplace bullying.

Key instruments for investigating staff misconduct

1. Local Government (State) Award 2017 (‘Award’).
2. Local Government Industry Guidelines on Workplace Investigations under section 36 of the Award (‘Guidelines’)
3. Model Code of Conduct for Local Councils in NSW (‘the Code’)
4. Procedures for the Administration of the Model Code of Conduct (‘the Procedures’)

Key questions to ask when a staff misconduct complaint is made

How serious is the complaint?

• If the complaint is minor, dated, or there are mitigating factors, then it may be best dealt with at a management level. There is discretion under both the Award (clause 36) and the Procedures (at 5.2) to handle a complaint this way.
• What will be achieved by escalating (or not escalating) the complaint? At law, the only legitimate purpose to invoke civil disciplinary proceedings is to protect the Council (and public confidence in it). Invoking proceedings to simply ‘punish’ an employee is unnecessary and impermissible.

What process do I need to follow?

• Establish if the complaint is most accurately characterised as a performance issue, a conduct issue, both, or neither, and adopt the corresponding process. You may need to get more particulars to answer these questions (i.e. who, what, how, where, when etc). If you think the complaint, if substantiated, might amount to a breach of the Code, identify with precision what particular section(s) of the Code are involved.

Remember that there may be multiple processes to follow, and ensure your process complies with all applicable processes. Key potentially applicable processes include:

• the disciplinary process set out at cl 36 of the Award (and the Guidelines);
• the Procedures for Administration of the Model Code of Conduct; and/or
• the Public Interest Disclosure process.

Key considerations once a decision has been made to Investigate:

1. It is important to follow all applicable procedures. Make sure you know who has what role.
2. Remember that the employee has a right to be represented in any Investigation.
3. Most Investigations regarding staff can be dealt with ‘in-house’, but consider whether Council needs assistance of an external body to carry out the Investigation. This is particularly advisable in cases concerning serious or complex allegations, sensitive subject matter, where an actual or perceived conflict of interest exists, or where Council doesn’t have the resources to conduct the investigation expeditiously.
4. Any sanctions or disciplinary responses for proven misconduct must be only those necessary to ‘protect’ the Council (and public confidence in it). Disproportionate sanctions are impermissibly punitive.

Key things to remember in all investigations:

Procedural Fairness

Procedural fairness is owed to the respondent, not the complainant.

In essence, the rules of procedural fairness require:

•  the person who may be subject to an adverse finding is ‘heard’ in a manner appropriate to the circumstances;
• the decision maker is able to bring an impartial mind to the question before him or her (and is seen to be able to do so); and
• decisions are made on the basis of logically probative evidence.

In particular, the employee concerned has a right:

•  to receive clear notice of all allegations and how, precisely, they might offend the Code;
• to receive all relevant information before responding to the allegations;
• to be given a fair amount of time to consider the allegations and supporting materials before being required to respond; and
• for their response to be received and genuinely considered before an adverse decision is made.

Suspension

In certain circumstances it may be appropriate to suspend an employee while an investigation is being carried out. However, suspension as a disciplinary tool should be used sparingly and only when it is necessary for the integrity of the investigation and protection of the Council.

Work Health and Safety

It is important to carry out your investigations in a reasonable manner so as to reduce the risk of mental health injuries to those involved.

Need more help?

Our Employment Law and Investigation Lawyers provide effective solutions to help manage your workplace and employees, while minimising your exposure to risks and issues. Where claims are made by employees, we are experienced advocates in all workplace jurisdictions, including the Fair Work Commission and the Federal Courts.

For further advice on investigations into staff misconduct complaints, please contact Gabrielle Sullivan, Director of Employment and Workplace Investigations.