How to conduct an efficient misconduct investigation in the workplace

Item 4(1) of schedule 8 (Code of Good Practice: Dismissal) of the Labour Relations Act (“The LRA”) 66 of 1995 provides that the employer should conduct an investigation to determine whether there are grounds for dismissal.

When allegations of misconduct arise within a workplace and are brought to the attention of Management, it is advisable for the employer to assess the severity of the allegations to determine whether or not such allegations warrant a formal investigation.

Prior to initiating disciplinary charges against an employee, it is vital for the employer to ensure that they have a reasonable basis, at a minimum, to believe that the employee has committed or may have committed the misconduct.

The employer must satisfy itself and possess justifiable grounds, prima facie, for instituting such disciplinary action.

Numerous employers have implemented systems and mechanisms to facilitate the reporting of misconduct or wrongdoing in the workplace, such as whistleblower channels and corruption hotlines. These measures aim to make it easier for incidents of misconduct to be reported.

According to Professor John Grogan in his book titled “Dismissal” Third Edition Juta 2020 on page 322, a prehearing investigation is precisely what its name suggests.

During this phase, the employer investigates the offence in order to decide whether formal disciplinary action may be justified.

This will normally entail interviewing witness, including possibly, the suspect (s), and inspecting relevant documents. If suspects are interviewed, they should be informed of the reason for the interview and advised of their right to be accompanied by a union representative or fellow employee. It is also advisable to record the contents of pre-hearing interviews, either in writing or electronically.

If a tape recorder or videotape is used, the interviewee should normally be informed. Statements may play an important role during the disciplinary inquiry.

If they are not used for purposes of cross examination or in evidence, the employer is not obliged to disclose them to the accused employee.

It may also be a sensible precaution to require witnesses to depose their statements in affidavit form. Employees interviewed during workplace investigations are required to assist the investigators. They cannot rely on the “right to silence”, even if they are implicated.

It is the responsibility of investigators to ensure that employees who are accused or suspected of misconduct are afforded an adequate opportunity to provide their responses to the allegations made against them.

In Msiza v Motau N.O and Another 2020 (6) SA 604 (GP), the court held as follows at paragraph 55;

“In my view where an investigator knows or is expected to foresee that his findings, remarks and conclusions will have consequences for the party on whose behalf an investigation is conducted and for the party against whom findings will be made, he is obliged to listen to both sides and, the party who is likely to be affected by adverse finding is entitled to demand the right to be heard before an adverse remark or finding conclusion or decision is made against him or her”.

In Masetlha v President of the Republic of South Africa & another 2008(1) SA 566 (CC) at paragraph 75, the Constitutional Court held that the audi alteram partem principle derives from the tenets of natural justice which are rules of fair procedure,

“It is inspired by the notion that people should be afforded a chance to participate in the decision that will affect them and more importantly an opportunity to influence the result of the decision.”

Having stated the above, there may be unique circumstances where employees facing allegations of misconduct or under investigation choose not to participate in the employer’s initiated investigation, despite being duly advised and informed to cooperate. In such instances, if employees willingly waive their right to be heard, investigators are authorised to continue with the investigation process.

The requirements regarding waiver of rights were summarised as per Kroon J in Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and Another as follows:

(a) waiver is first and foremost a matter of intention;

(b) the test to determine intention to waive is objective, the alleged intention being judged by its outward manifestations adjudicated from the perspective of the other party, as a reasonable person
(c) our courts take cognisance of the fact that persons do not as a rule lightly abandon their rights. Waiver is not presumed;

(d) it must be alleged and proved; not only must the acts allegedly constituting the waiver be shown to have occurred, but it must also appear clearly and unequivocally from those facts or otherwise that there was an intention to waive. The onus is strictly on the party asserting waiver;

(e) it must be shown that the other party with full knowledge of the right decided to abandon it, whether expressly or by conduct plainly inconsistent with the intention to enforce it.

Investigators must maintain impartiality and avoid any actual or perceived bias or conflicts of interest. Professionalism is defined by the way individuals fulfil their responsibilities, demonstrating integrity, fairness, and diligence. The manner in which an investigation is conducted serves as an indicator of the employer’s professionalism, and the credibility of the investigators plays a crucial role in upholding the integrity of the investigation. For instance, the manner in which interviews are conducted shapes the impression that both the investigator and the employer are committed to treating the investigation with utmost seriousness.

Confidentiality is a critical component of an investigation, essential for upholding its integrity. Every aspect of the investigation must be treated with strict confidentiality. Failure to ensure confidentiality can result in severe consequences and repercussions.

Upon concluding the investigation, the Investigator is responsible for preparing a comprehensive report that should include the following elements:

Summary of gathered facts: This entails a chronological account of events, including details of individuals interviewed and documents reviewed.

A brief discussion of any credibility evaluations made during the investigation.

Clearly indicating whether the findings were substantiated, unsubstantiated, or inconclusive. If substantiated, it should specify the conclusions supported by the evidence.

The report should outline the specific conclusions reached on each key issue investigated.

Identifying any issues that could not be resolved during the investigation.

Application of company guidelines or policies: A brief discussion on how the employer’s guidelines or policies relate to the situation under investigation.

Assessing whether a breakdown in internal controls allowed the problem to occur.

Followed internal controls: Determining whether relevant internal controls were adhered to in order to prevent other problems or mitigate their impact.

Specifying the duration of the problem and any financial implications it may have for the employer or third parties.

A comprehensive presentation of the investigation’s findings.

Providing recommendations based on the investigation’s conclusions and findings.

The question of whether employees are entitled to receive the investigation report, which serves as the foundation for the charges against them, during CCMA proceedings was addressed in the case of South African Sports Confederation and Olympic Committee (SASCOC) v Commission for Conciliation, Mediation and Arbitration and Others (JR 2642/2019) [2021] ZALCJHB 23 (1 March 2021) where the Court held as follows at paragraph 13:

“Clearly, the employees had no right to discovery or disclosure of the investigation report when the disciplinary enquiry was convened. To the extent that the arbitrator held that the investigation report contains information related to the substantive fairness of the dismissals as it was the investigation report that gave rise to the charges, this is simply not correct. The chairperson of the disciplinary hearing provided the substantive reasons for the employees’ dismissals in his findings, which have been discovered and provided to the employees. The investigation report is thus entirely irrelevant to the issue of the fairness of the employee’s dismissal, particularly given that it was not used in the disciplinary enquiry and will not be relied on by the applicant in the arbitration proceedings”.

In conclusion, we recommend that employers should appoint skilled and impartial investigators to carry out workplace incident investigations.

These investigators should possess a range of investigative and essential skills, including evidence collection, effective communication, research and analysis, and report writing.

Furthermore, the investigators should adhere to stringent ethical standards and maintain professionalism throughout and beyond the investigation process