By Howard Levitt
I used to start client seminars with the adage: The first three rules in building up a case are: “1) Document, 2) Document, 3) Document.”
I have since learned otherwise. I now often remind my employer clients that simply recording bad behaviour is unhelpful in later terminating that employee.
Recently, an employer contacted me to discuss terminating an older, five-year executive. The employer provided examples of the employee lying about his whereabouts, using office time and materials to help with his part-time teaching job, making disparaging remarks about other managers, and even asking his assistant to tell lies on his behalf.
Why, the client asked, could they not rely on the incidents of misconduct from two years earlier? Simple answer: They knew what he did, but did little more than confirm their displeasure. Understandably, this imparted to the employee the apprehension that his conduct was not that bad and would not result in dismissal.
Coupled with this, the employer didn’t know how to investigate misconduct generally. Both issues needed to be dealt with quickly. It is not uncommon that small- to medium-sized employers with long-tenured employees find themselves in this conundrum.
Problematically, a significant number of employment lawyers continue to misinform their clients about what qualifies as cause, saying that virtually nothing qualifies — which is false. In this case, the employer had been sitting on superb cause allegations for at least two years.
Once the employer understood that little outside of the final incident could be used, we moved to develop the investigation strategy.
So how do you deal with investigating the serial liar who had never previously been questioned? The rules are the same for all investigations: An employer must give the employee a fair opportunity to present his side of the story and make the final decision on next steps only after fairly evaluating what they learn.
What does this mean for employers when looking at past misconduct?
Deal with all misconduct allegations in a consistent and timely manner: While you might not be as upset the first time an employee contravenes your policies, your failure to remedy the incident means you can’t rely on it later – when inevitably – the employee does it again.
It is possible to remedy your past failures to deal with misconduct: Employers fall into a rut in believing that they are forced to run their business the same way, even after they realize deficiencies in disciplinary procedures. Your employment lawyer can help shape your future practices so that you are not forced to provide significant severance packages to long-term employees involved in serious misconduct.
Dealing with the past condonation: For less serious misconduct, such as the personal use of office supplies, your past condonation does not mean that you must tolerate the bad behaviour forever. Implement a new policy on “use of office supplies,” and ensure that it is well disseminated throughout the workplace.
Don’t write the termination letter in advance of conducting the investigation. Doing so will demonstrate to the court that your investigation was a sham.
What should employers remember about investigations?
Don’t be afraid to investigate incidents yourself: Courts do not mandate third-party investigations. They are costly, almost never cost-justified and are often not used after expending that cost. Indeed, the investigator’s findings are irrelevant to the court, which will conduct its own analysis. Instead, work with your lawyer to understand your obligation to conduct one that is fair – judges don’t look for a perfect investigation, only a reasonable one.
Assume everything you write in relation to an investigation will be published on the front page: This is only a mild exaggeration and relates to your internal emails on the employee, and the letters you eventually send to that employee. Think critically about the message you want to convey – it should be clear and not embarrassing to you when disclosed.
Don’t make investigation notes: Scribbles on a notepad almost always throw a wrench into an otherwise respectable attempt to investigate an incident. In my experience, notes made while trying to listen to various witnesses are largely inaccurate and often times at odds with the reasons around the final decision to terminate.
Ensure that the employee knows what the meeting is about: This might sound obvious, but often employees claims that they had no idea that the meeting was an investigation meeting.
Your investigation need not be perfect, only reasonable: The courts have made it clear that while the investigation need not be perfect, it must be reasonable and fulsome. There is little law surrounding investigations, they are simple to do and, if you want additional credibility for the investigator, get your HR person certified as one.