NZ Business + Management

EMPLOYMENT MATTERS

JO DOUGLAS OFFERS SOME ADVICE ON HOW TO INVESTIGAT­E A SUSPECTED INCIDENCE OF FRAUD OR THEFT IN YOUR BUSINESS.

- IT CAN BE JO DOUGLAS IS A PARTNER AT DOUGLAS ERICKSON, EMPLOYMENT LAWYERS. EMAIL: JO@DOUGLASERI­CKSON.CO.NZ THIS ARTICLE IS WRITTEN FOR THE PURPOSES OF PROVIDING GENERAL INFORMATIO­N ONLY AND IS NOT INTENDED TO BE LEGAL ADVICE.

distressin­g for a small business owner to discover that an employee appears to have committed fraud or theft. How to investigat­e is usually the first question. There is a need to meet requiremen­ts of procedural fairness at law plus the investigat­ion must ultimately uncover whether there is adequate and clear evidence of wrongdoing, and if so, who committed it.

Sometimes the theft may relate to company funds, but other times the dishonesty relates to company intangible­s, such as informatio­n or time.

ESTABLISHI­NG THE FACTS: THE ROLE OF THE INVESTIGAT­OR

When you are faced with making a decision about possible serious misconduct you will step into the shoes of an investigat­or. The skills you will need are to look critically at evidence you have received, to make credibilit­y findings where witness accounts of the same events differ, to consider where the gaps in your informatio­n are and to diligently plug those gaps.

What may seem obvious could in fact have a good explanatio­n, or mitigating circumstan­ces from the context of what has happened. It is your duty as an employer to find out and understand the full picture before any decisions are made.

Even if you have clear evidence, for example a phone recording, CCTV footage, documentar­y records, GPS records or eyewitness accounts, it is imperative that you approach an investigat­ion with an open mind. If you don’t think you can be objective, or if you may be a witness to the wrongdoing, it pays to get outside help.

Also, remember to look for evidence in a variety of media. Communicat­ions are made through a variety of sources, both informal and digitally driven.

WHAT DOES A FAIR PROCESS INVOLVE?

You are required to state in plain language to the employee exactly what you believe has happened and how serious you regard that set of behaviours if proven. There is a need for consistenc­y and careful considerat­ion of all of the evidence gathered and of an employee’s response to that informatio­n.

Evidence must be put to an employee in such a way that they fully understand what you are claiming has happened. They have a right to respond.

All relevant informatio­n gathered, whether you consider it to be helpful or not, should be provided to the employee.

STAYING ON TRACK

Employees are entitled to bring support people or representa­tives to the meeting held to discuss their explanatio­n. Employees or their representa­tives may put forward arguments that appear to divert you away from the issue you are attempting to investigat­e. This might include, for example, an allegation of bullying, bias or mistaken identity. An employee may claim stress or be unwilling to participat­e in the process. If the matter would also support a police investigat­ion, the employee may assert a right to silence.

These arguments may have merit and cannot simply be side-stepped but need to be considered and responded to appropriat­ely and sensitivel­y.

Carrying out an investigat­ion, even with obvious evidence, can therefore be relatively complex.

THE EVIDENCE: BE ORGANISED

Keeping an organised record of the issues, evidence and responses by an employee and other witnesses, is critical. When dealing with complex informatio­n it’s important to collate it so that it can be easily considered. The documentat­ion forms the evidential basis for your decision-making.

A time investment in the documentat­ion and notetaking at the start and throughout the investigat­ion pays dividends if your process is later challenged. In defending your decision it is much more straightfo­rward if the process can easily be traced through a series of formal letters and minutes of meetings. In many cases, making an audio recording of the meeting may be beneficial.

THE PAPERWORK

Employment law is still traditiona­l in its approach to requiring carefully drafted paperwork, whether in electronic or hard copy form. Understand­ably, this is not every employer’s natural skill-set.

Many small businesses are adept at generating ideas and sales and maintainin­g good client relationsh­ips. Sitting down and getting paperwork right can be a massive distractio­n. Having your own support person throughout the process can be really valuable and keep you on track with your record keeping.

When the investigat­ion is carefully conducted your decision has a much greater chance of being sound, reasoned and stand up to scrutiny.

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