When dealing with employees’ misconduct, there are certain things you need to do in order to ensure that you are following a fair procedure. One of the most important elements is that the employer should conduct a workplace investigation to determine the facts of the case.

Misconduct can come in many forms – fighting with a colleague, misusing company equipment, stealing, taking unauthorised absences, turning up late to work or under the influence of drugs or alcohol. It can be one trivial incident, repeated minor misconduct that progressively turns into a more serious offence or an act of gross misconduct.

Gross misconduct are those acts which are so serious that they destroy the relationship of trust and confidence between the employer and employee, making the working relationship impossible to continue.

An investigation is a fact-finding exercise to collect all the relevant information on a matter. A properly conducted investigation can enable an employer to fully consider the matter and then make an informed decision on it. Making a decision without completing a reasonable investigation can make any subsequent decisions or actions unfair, and leave an employer vulnerable to disputes and/or legal action.

When an allegation is made, the employer need to know what happened, when it happened, where it happened, why it happened, whether anyone else is involved and did anyone else see what happened.

Investigations are an essential part of handling certain matters within an organisation. In potential disciplinary investigations a flawed or incomplete investigation can undermine the disciplinary process and leave employers vulnerable to claims for unfair dismissal.

For a dismissal to be fair an employer must be able to show that they came to their decision as a result of a fair and thorough investigation.

Employers make two common mistakes on receiving allegations against employees:

• Firstly they ignore the reports because acting on them is “too much trouble” or because they are scared of infringing on the myriad labour legislation rights that employees enjoy. This constitutes dereliction of duty or ignorance of the process on the part of management. It is important to act in a consistent manner, after the investigation had been done and some wrongdoing had been found, appropriate action must be taken.
• Secondly, managers may hastily implement discipline without first investigating the validity of the reports. This may occur due to feelings of anger or to ignorance of the labour legislation pertaining to disciplinary processes.

Investigation of misconduct allegations is a crucial step in legally acceptable disciplinary action and cannot be bypassed.

In the case of TGWU obo Joseph and others v Grey Security Services (Western Cape) (Pty) Ltd (2004, 6 BALR 698) a number of security guards were dismissed after the employer’s client requested the employer to remove the guards from the premises for having been involved in dishonest practices. The employees refused to be transferred away from the client’s site and they were, dismissed. The CCMA found the dismissals to be substantively unfair. This was because the employer had not investigated the client’s allegations of dishonesty against the guards. The employer was ordered to reinstate all the employees with full back pay and to pay their costs.

Such a costly reinstatement might not have occurred had the employer investigated the misconduct alleged by the client.