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