THE KEY TO GOOD FAITH INVESTIGATIONS

As the human resource professional in your organization you may be called upon to conduct a confidential investigation and as such, your methods and findings must be able to withstand the scrutiny which will most certainly occur.

Fair investigative treatment toward the complainant, subject of investigation and the witnesses will ensure that employment decisions will be asserted without regard to race, color, religion, sex, sexual orientation, national origin, ancestry, marital status, medical condition, pregnancy, age, physical, mental disability or any other discriminatory non-merit factor.

When an employee feels his or her rights have been violated, or that policies or guidelines have not been applied in an evenhanded manner, it is essential that those who are charged with the responsibility of investigations and discipline be prepared to conduct a comprehensive, objective, and professional investigation. Inadequate and negligent personnel investigations and the resultant effects can provide the basis for the erosion of organizational credibility and confidence in the eyes of its employees, the Union and management itself.

The purpose of an investigation is to gather facts so that those charged with the responsibility for discipline can make a credible determination as to what happened and what is the appropriate discipline for a given situation. To that point, not all investigatory findings will lead to discipline. In fact, investigations often determine and conclude that the alleged act or conduct never occurred.

If someone is alleged to have violated a policy, guideline, or procedure, conducting an effective investigation helps to reach a factual conclusion and ensure that the appropriate discipline, corrective action, rather than jump to discipline is based on the best facts available. Accurate investigative facts lead to sound conclusions, appropriate and sustainable discipline when appropriate and support legally mandates.

In disputed personnel discipline hearings, the employee’s representative will often attempt to discredit the investigation and the investigator by illustrating that the investigator was not properly supervised, unskilled or untrained and thus the basis for the imposed discipline (the investigation) cannot be considered adequate. Therefore, the discipline cannot be sustained.

Conducting effective personnel investigations is an acquired skill that must be learned. Your PHR/SPHR/GPHR designation, position classification or departmental assignment as an investigator, does not automatically or magically establish your skills or competence as an investigator.

As an investigator, you have to know how to ask questions, judge credibility, extract facts and relevant information from people who may be reluctant to provide such information or who may have an agenda or ulterior motive. Sorting relevant details from irrelevant details and being comfortable making credible resolutions (of all parties) are also skills which must be developed.

JOINED TOGETHER; GOOD CAUSE AND BURDEN OF PROOF

Generally, personnel investigative findings and the resultant discipline decisions are based on a standard of proof called “preponderance of evidence”.

Preponderance of the evidence in personnel investigations means the greater weight of the evidence. It is such evidence based on a good faith investigation that when weighed against opposing evidence that the errant conduct did not occur persuades you that the allegations of misconduct are more probably true than not true. In the absence of such proof (usually the result of an inadequate or negligent investigation), the discipline will not and should not be sustained.

However, if the evidence (facts) appears to be equally balanced, or if you cannot say on which side it weighs heavier, then the burden of proof has not been met and the asserted or proposed discipline cannot and should not be imposed or sustained.

Discipline decisions based on the preponderance of evidence discovered by a thorough and adequate investigation will allow the employer to assert appropriate discipline based on good cause.

Good Cause is translated into, a fair and honest cause or reason regulated by the good faith of the employer. Discipline decisions must be good faith determinations that sufficient cause existed based on reasonable grounds as confirmed by adequate investigations.

The defining question that must be answered in order to have sustainable discipline is; was the factual basis on which a decision to discipline was reached honestly, after an appropriate investigation and for reasons that are not arbitrary cupreous or pre-textual?

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