2. Source of Allegations of EE misconduct
• You will not personally witness every act of misconduct
alleged to have been committed by your employees.
Allegations of employee misconduct can come from a
variety of sources.
• MOST COMMON SOURCES:
• CO-WORKERS (superiors, subordinates, etc)
• CUSTOMERS/CLIENTS
3. What is your role in the area of EE
investigations?
• You are responsible for recording the allegation in as
factual and complete a manner as possible, asking the
source of the allegation such questions as:
• 1. What occurred?
• 2. When did it happen (time/date)?
• 3. Were there any other witnesses to the event?
• 4. Any other details pertinent to the complainant’s
observation of the event.
• When the investigation is the result of an allegation, try to
get written statement from the reporting party.
4. Should the employee be removed from the
work area during the investigation?
• In some circumstances, it may be appropriate for the
accused employee to be away from the work location
during the investigation. In determining whether to leave
the accused employee in the work area, assign them to
work at home, or to assign them to another location/set of
duties, the following should be considered:
• • Could the accused hinder the investigation by corrupting
data or removing/destroying other evidence?
• • Could the accused cause further harm if left in their
current position?
• • Is the accused a potential danger to others?
5. Preventive Suspension
• The right of employer to impose preventive suspension is not
found in the Labor Code itself. The oft-cited legal basis for
imposition of preventive suspension is Section 8 and Section 9
of Rule XXIII, Book V, of the Omnibus Rules Implementing the
Labor Code, as amended by Department Order No. 9, Series of
1997,
• Section 8. Preventive suspension. The employer may place the worker
concerned under preventive suspension only if his continued
employment poses a serious and imminent threat to the life or
property of the employer or of his co-workers.
• Section 9. Period of suspension. No preventive suspension shall last
longer than thirty (30) days. The employer shall thereafter reinstate the
worker in his former or in a substantially equivalent position or the
employer may extend the period of suspension provided that during
the period of extension, he pays the wages and other benefits due to
the worker. In such case, the worker shall not be bound to reimburse
the amount paid to him during the extension if the employer decides,
after completion of the hearing, to dismiss the worker.
6. Your responsibility
if the allegation is of criminal action?
• Document the allegation accurately and completely. Take
careful, legible notes of what the complainant says, your
own follow-up questions, and the answers to these
questions.
• Immediately notify your manager and if possible, legal
counsel
7. Supervisor’s/HR’s responsibility when the
alleged misconduct is of a non-criminal
nature?
• After getting the initial information, the supervisor should:
• 1. Contact HR for guidance on planning the investigation.
• 2. Develop a list of questions or issues that need to be answered to
determine if the allegation is true.
• 3. Make a list of potential witnesses who may help answer those questions.
• 4. Make a list of documents (e.g. time cards, work products, written policies)
to be reviewed.
• 5. The next step is usually to interview the employee who is the subject of
the allegation. (if you are a supervisor) This may not always be the best
strategy, and your initial consultation with HR will cover this aspect of your
investigative plan.
• Note: The employee who is the subject of the allegation, and any other employees you
interview as witnesses have a right to union / legal representation if they request it.
• 6. Maintain a legible and orderly file of all materials assembled during the
investigation. This includes your interview notes, documents reviewed, and
any written statements from the complainant or witnesses. This file, known
as the investigatory file, will form the basis for any disciplinary action that
may result from the investigation and will be relied on to support any such
action.
8. What is the investigatory file used
for?
• The materials in the file will be reviewed to determine
whether there is sufficient proof to sustain the allegation
and, if so, to determine what level of action should be
taken. If disciplinary action is initiated as a result of the
investigation, the file becomes the "material relied on" in
taking the disciplinary action.
• Once an employee receives the Skelly letter proposing
discipline, he/she and the union has a right to obtain and/
or review all of the materials which were “relied on” in
proposing the action. It is critical that this material be
assembled and copied prior to issuance of the intent letter
so it can be given to the employee if they request it.
Notes de l'éditeur
he above-quoted provisions are no longer reproduced in the present Omnibus Rules, as amended by Department Order No. 40, Series of 2003, which supersedes Department Order 9-97. It is opined, however, that the removal of said provisions from the omnibus rules did not diminish the right of the employer to impose preventive suspension, considering that the justification for upholding the right is necessity itself, i.e., when continued employment poses threats to the life of the employer or his co-worker.
