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A misconduct investigation is a fact-finding process that helps supervisors use accurate information in their decision-making. Supervisors must have an understanding of the facts and circumstances before assessing appropriate discipline.
In cases of employee misconduct, a fair and thorough investigation is necessary to establish “just cause.” Just cause is a set of criteria that helps guide supervisors and is used in arbitration to determine whether a supervisor took appropriate disciplinary steps.
When discipline is challenged, it goes before a neutral third party in arbitration. The investigation file, including notes and the report, and the testimony of the investigator(s) are very important in the arbitration process.
Human Resources staff facilitate a course on How to Conduct an Employee Misconduct Investigation that is mandatory for all supervisors.
Misconduct Investigation Process
The steps to completing an investigation include:
Always keep in mind when choosing an investigator that they may have to testify later on the merits of the investigation. In the most critical investigations, assigning a team instead of an individual is preferred. Human Resources can assist in investigator selection.
Open an Investigation File and Develop a Plan
Once an investigator is chosen, they should:
- Open a file
- Meet with the appropriate management representative to discuss the parameters of the investigation
- Identify potential interviewees
- Gather and review relevant policies/work rules, documents, and records
- Determine who to contact to set up the meetings
- Determine an appropriate deadline for completing the investigation
Schedule Investigative Interviews
The employee under investigation and directly involved in an incident must be given notice of the investigative interview. This notice must include:
- Information on the nature of the issue
- Employee Assistance Program referral
- Statement on right to representation.
Employees have a right to representation any time discipline could reasonably be anticipated as a result of an investigation. Employees who may have knowledge related to an incident but are not facing discipline can be interviewed as a witness with or without representation. In these cases, the employee must be told at the start of the interview that they are not facing any discipline for what they tell the investigators.
The investigator should also arrange for another supervisor to attend the interview.
Conduct Investigative Interviews
When conducting interviews, take some time to remind yourself first about the components of Trauma-Informed Supervision.
- Employees should be told at the start of the interview they are not to discuss the investigation with others aside from their Union or Association representative.
- The employee has an obligation to answer work-related questions during an investigatory interview. Failure to answer such questions may be considered insubordination and result in discipline. (Note: This is very different from a pre-determination hearing, when employees can choose not to respond.)
- The notes from an investigation are extremely important.
- The role of any Union or Association representative attending the interview is limited. They are not permitted to bargain or respond to questioning for an employee.
The process closes with an investigative report.
- Include details. An investigation should be as detailed, specific, and exhaustive as possible. A good investigation will result in knowing who, what, where, when, why, and how to the fullest extent possible.
- Identify and use all sources of information. These sources may include people, physical evidence, documents such as work rules and policies, timesheets, video recordings, e-mail, call records, and GPS vehicle tracking.
- Be timely. Employees are entitled to a timely investigation as a matter of due process. The investigation should start promptly and there should not be unreasonable delays.
If an investigation finds misconduct, then supervisors should proceed with the Disciplinary Process.