Checklist for investigating serious misconduct

The following checklist is a guide only and is indicative of the types of steps to follow in dealing with situations that may constitute serious misconduct. Individual cases may require further specialist advice from your employment or legal advisor.

You can also seek further information from the Department of Labour on 0800 20 90 20.

Serious misconduct is behaviour within the workplace that creates an immediate need to review the employment relationship. This could include theft, or physically or mentally abusive behaviour to colleagues or customers.

In such circumstances, your investigation must be thorough, well documented and undertaken promptly. This is an area where you may consider suspending the employee (refer to Investigating and dealing with misconduct) while that investigation takes place.

If the alleged misconduct is such that you may have to involve an outside party, such as the police or a professional association, you should seek advice before you get started.

Remember that the Employment Relations Act applies a “test of justification” in most situations. Whether behaviour is considered serious enough to warrant immediate dismissal, without an opportunity for the employee to change behaviour, depends on whether your actions and decisions are what a fair and reasonable employer would have done in the circumstances and how you dealt with similar situations in the past. This does not mean you need to deal with behaviour in the same way as in the past, but you need to have set clear expectations of what behaviour is acceptable and what is not.

STEPS FOR INVESTIGATING SERIOUS MISCONDUCT

	CHECK
Check the employment agreement and the problem-solving process in the agreement. In particular, be prepared to follow carefully any processes for dealing with serious misconduct.
Review any relevant company codes of conduct or other statements of expectations, including descriptions of what constitutes serious misconduct at your workplace.
Either alone or with the person responsible for the employee’s supervision, investigate the alleged incident thoroughly. This will generally require that you gather relevant facts and talk to any witnesses, rather than relying on assumptions.
Confirm whether, on the basis of the information gathered, the incident expressly constitutes serious misconduct in your workplace or is behaviour that would generally not be tolerated in any workplace.
Consider whether the allegation and/or the evidence is serious enough that the employee should be suspended during your investigation. Suspension is a serious step, and you are strongly advised to get advice from a legal advisor or an employers’ association before deciding on this step. (refer to Suspending an employee)
Arrange to meet with the employee, saying you will be discussing an issue of potential serious misconduct that could result in dismissal or other disciplinary action and making it clear that they have the right to have a support person or representative present. Record that the meeting has been arranged. (Invitation to investigation meeting - Serious Misconduct)
At the meeting, outline the evidence of misconduct you have gathered. You must make known to the employee any information that you rely on as evidence. If you don’t want to tell the employee about a piece of information, you can’t use that information in making your decision. Listen to the employee’s explanations. If the employee requires time to gather information to respond, then give adequate time – but a clear time should be set for a further meeting. (Disciplinary meeting - Guide and Notes Form)
If explanations are given, investigate them immediately and thoroughly and record the outcome of the investigation. Reconsider the seriousness of the behaviour given all the material you have now accumulated, and assess whether the misconduct was at a level that makes it impossible to continue the employment.
Arrange a further meeting, again making it clear that the meeting could result in dismissal or other disciplinary action and that the employee has a right to a representative or support person. If the employee was suspended, consider whether the suspension should now be lifted.
If the explanation shows: that misconduct has not occurred, then advise the employee of this and remove all reference of the allegation from their file and do not rely on the allegations on any future occasion that any misconduct is not at a level or of a nature to warrant immediate dismissal, then a warning should be issued and recorded on the employee’s file. Your process can revert to regular performance management processes at this stage. Where you are satisfied that serious misconduct has occurred, the process can be continued as follows.
If no adequate explanation is given, or your investigation leads you to believe that serious misconduct occurred despite the explanation, you should inform the employee of this.
If you are contemplating dismissal, advise the employee of this and invite the employee to make any final representations on your conclusions, and consider and respond to any request for a lesser action. If you agree to a lesser disciplinary action, advise the employee and record this on their file.
If you decide dismissal is appropriate, inform the employee that they are being dismissed and ensure that dismissal occurs on terms no less favourable than under the employment agreement. Confirm the outcome in writing to the employee. (Serious Misconduct - Dismissal on notice)

Also read What you need to know about: Ending Employment Relationships

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