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Investigating Misconduct - Prof Maimunah

The document discusses best practices for investigating alleged employee misconduct, including determining the purpose of an investigation, choosing an impartial investigator, collecting evidence through interviews and documentation while respecting interviewees' rights, and evaluating the credibility of evidence. It provides guidance on conducting interviews and outlines tips for investigators such as maintaining objectivity and avoiding threats or promises. The outcome of the investigation should be a report detailing findings and recommending whether a prima facie case of misconduct exists.

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Amrezaa Iskandar
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135 views28 pages

Investigating Misconduct - Prof Maimunah

The document discusses best practices for investigating alleged employee misconduct, including determining the purpose of an investigation, choosing an impartial investigator, collecting evidence through interviews and documentation while respecting interviewees' rights, and evaluating the credibility of evidence. It provides guidance on conducting interviews and outlines tips for investigators such as maintaining objectivity and avoiding threats or promises. The outcome of the investigation should be a report detailing findings and recommending whether a prima facie case of misconduct exists.

Uploaded by

Amrezaa Iskandar
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PPTX, PDF, TXT or read online on Scribd
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Investigatin

g
Misconduct
Presented
by :
Maimunah
Aminuddin
Maimunah is the author of:
 Employment Law Manual for Practitioners
(2013, Current Law Journal Publications)
 Malaysian Industrial Relations & Employment
Law (9th ed., 2016, McGraw Hill)
 Human Resource Management for Practitioners ,
(2016, CLJ Publications)
 Human Resource Management: Principles &
Practices (3rd ed., 2014, Oxford University Press)
 Terminating the Service of the Employee (2nd ed., 2013, Current
Law Journal Publications)
 Employment Relations, Discipline & Termination of
Employment (2006, Lexis Nexis)
 Recruitment, Selection & Induction (2006, Lexis Nexis)
Purpose of an Investigation into Alleged
Misconduct
Choice of Investigator
Rights of Persons under
Investigation
Collection of Evidence
The Investigation Interview:
Do’s and Don’ts
INVESTIGATING ALLEGED
MISCONDUCT
What is the PURPOSE of an investigation?
1. To determine whether there is sufficient
evidence that misconduct has been
committed, i.e. whether there is a prima
facie case
2. To collect evidence that may be presented
at the Industrial Court
3. To determine the modus operandi (M.O.) so
as to prevent further similar incidents
No evidence, no case.

Not enough evidence, still no case.

Weak evidence, no case.

No evidence, no case!
INVESTIGATING ALLEGED
MISCONDUCT, cont.
WHO should investigate?

One or more neutral persons with


knowledge of investigation techniques.
HR/IR, Security, Audit, etc.
The investigators must
be trustworthy.
INVESTIGATING ALLEGED
MISCONDUCT, cont.

Generally, the investigators should be higher in rank or


the same rank as the accused employee and any
parties being interviewed.
A very senior manager should be investigated by an
external investigator.
 As far as possible, the investigator should not be
appointed prosecutor if a domestic inquiry is
conducted into the allegations
Any person involved in conducting an investigation
must not be appointed as a member of the Panel of
Inquiry.
RIGHTS OF PERSONS BEING
INVESTIGATED
Beware of intrusive questions and unreasonable
tactics!
Such behaviour may cause the employer to be liable
for a law suit on the grounds of:
False imprisonment
Assault
Infliction of emotional distress
INVESTIGATION ISSUES
 Can an employee/witness be detained for the
purpose of interviewing him/her?
 Does the employer have the right to search accused
employee’s locker/desk drawers/computer files?
 Does the employer have the right to search the
employee’s personal belongings (handbag,
briefcase, car, etc)?
 Does the employer have to right to search the
employee’s home?
INVESTIGATION ISSUES,
cont.
 Who is interviewed in what order during
an investigation?

 What should be done with illegal


substances/weapons/other illegal items
discovered during an investigation?
INVESTIGATION ISSUES
What if witnesses/accused refuse to answer
questions during interview?

Can evidence be collected


through covert surveillance?
Is there a right to privacy at work?

Does an employee under investigation need to be


suspended?
INVESTIGATION ISSUES,
cont.
What if witnesses/accused refuse to answer questions during
investigation interview?

Remind the persons that refusal to cooperate is a misconduct


INVESTIGATION ISSUES

Can evidence be collected


through covert surveillance?
Is there a right to privacy at work?

Covert surveillance is not appropriate and may not


comply with the Personal Data Protection Act 2010
INVESTIGATION ISSUES

Does an employee under investigation need to be


suspended?

1. Make a decision whether or not to suspend. Do not


allow suspension to be automatic.
2. Do not allow suspension to be for a lengthy period
without good reason
3. Suspend for a specified period, which can be extended
if necessary (Do not suspend “until further notice”)
EVIDENCE
Evidence that misconduct has occurred is the
outcome of an investigation
No evidence, no case!

Investigat Collect Take


e Evidence Action
AN INVESTIGATOR
COLLECTS EVIDENCE
Documents

Physical evidence/Objects/Exhibits

Witnesses/Complainant/Accused employee

Maintain a clear chain of control of documents


and objects
INVESTIGATING ALLEGED
MISCONDUCT, cont.
Interviewing Tips
 Plan topics to be covered
 Do not threaten interviewee
 Do not offer accused employee a lighter sentence
if he admits guilt
 Keep calm, no matter what happens
 Watch the non-verbal messages of the interviewee
 Keep an open mind
CONFESSION UNDER DURESS
AWARD NO : 1522 OF 2011
“On or about 22.2.2002 the claimant was confined
to a locked room in the company's office and was
threatened and coerced by several employees
from the xxx Group Fraud Department to admit to
fraudulent transactions in the company and to
write a confession post-dated as 23.2.2002. Some
of the threats made to the claimant included
being led downstairs and shown 3 policemen who,
Confession under Duress, cont.
the claimant was told, were waiting to arrest her. She was
also told of the interrogation tactics employed by the police
which included beatings, stripping, molestation and rape.

The claimant was also told that she would be handcuffed so that
she would be publicly humiliated. The claimant was confined in
the locked room for hours with the said
employees and was denied contact with her husband
and/or her lawyers even though she had requested to see
them. Finally, after much duress and mental and physical stress
on the claimant, the claimant signed a written confession…”
Confession under Duress, cont.

“It is the finding of the court in the circumstances


that the admission letter was not given voluntarily
but was extorted from the claimant by the use of
threats as aforesaid and that its contents were
supplied and dictated to her by COW2 and COW3. A
prerequisite for the admissibility of an admission is
that it has been made voluntarily. The court
therefore rejects CO1 as having no probative value
whatsoever.”
INVESTIGATION INTERVIEWS

Do’s and Don’t’s


 Do choose a suitable location – private and quiet
 Do involve at least 2 interviewers, but not more
than 3
 Do ensure the interviewer writes up the key
points made by the interviewee and has the
statement signed by the interviewee
 Insist on interviewee providing facts not
assumptions or conclusions
INVESTIGATION INTERVIEWS
 Don’t get upset by emotional outburst by
interviewee
 Don’t threaten the interviewee in any way
 Don’t make promises that cannot be kept, e.g. that
information given will be kept entirely
confidential
 Don’t discuss the possibility of dismissal
EVALUATING THE CREDIBILITY
OF EVIDENCE
Investigators must decide whether witnesses are
credible or not

Is the witness/accused/complainant telling the


truth, the whole truth and nothing but the truth?

Differentiate between facts and


inferences/opinions
EVALUATING THE CREDIBILITY
OF EVIDENCE
Demeanour (non-verbal behaviour/body language)
 Facial expressions
 Tone of voice
 Eye contact (lack of)
 Restlessness
EVALUATING THE CREDIBILITY
OF EVIDENCE, cont’d.
Opportunity to observe relevant events or acts
 Where was the witness?
Inconsistency
 Witness first says one thing, then another
 Evidence given by witness not consistent with other
evidence
Bias
 What is relationship between the witness and any
person they give evidence against?
Expertise
 Essential for expert witnesses, although not so
important for eye witnesses
PERCEPTIO
N
PROBLEMS
Our brains c
an be very unr
e liable!
In this test DO NOT READ the words, say aloud the
COLOUR of each word.

YELLOW BLUE ORANGE


BLACK RED GREEN
PURPLE YELLOW RED
ORANGE GREEN BLACK
BLUE RED PURPLE
GREEN BLUE ORANGE
OUTCOME OF AN INVESTIGATION

Investigation Report

 The investigator’s report must describe the


findings of the investigation
 All evidence discovered must be listed and
appended, where practical
 The investigator must recommend whether or not
a prima facie case exists

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