Whilst its true that Team HB give advice that is broad and varied and at times, dare we say it, entertaining! A frequent and consistent element of our advice centres around helping clients “establish the facts”.
Be it capability or conduct it is all about the facts. Sounds simple and straightforward? Yet it is something many employers get wrong and it is at this point that risk becomes an issue. Even in matters were there may well be a potentially fair reason for taking action against an employee, an inadequate investigation can render any subsequent dismissal unfair.
Establishing the facts is an investigation. It is about listening, questioning, probing and challenging inconsistencies (the part everyone misses out) That’s it! Employers need to stick to the basics and stop living in fear of getting it wrong as that only leads to …… getting it wrong!
When dealing with disciplinary matters where misconduct is alleged, employers have to satisfy the 3 point “Burchell” test (British Home Store Limited v Burchell 1978).
The three main elements of the “Burchell” test are as follows:
That at the time of dismissal;
1. The employer genuinely believed that the employee was guilty of misconduct
2. The employer had reasonable grounds on which to base that belief
3. The employer had carried out as much investigation as was reasonable in the circumstances of the particular case.
Taking the first two steps out of order and assuming the facts are derived from the employee in question and any/all relevant witnesses, written evidence or CCTV footage then it is realistic to conclude that one would be entitled to base their belief on such grounds. The “facts” established are clearly influential in allowing the employer to form their belief.
The third element is, for some, the tricky part. How much is as much investigation as was reasonable? Team HB say that it depends on relevance and inconsistences. Our clients have called us before this point but if you are going it alone then keep it basic. If the employee admits their wrongdoing/underperformance then naturally the investigation can be limited, if on the other hand there are matters denied and, or are inconsistent with the allegations then a little more homework is required. At this point, it is necessary to stick to matters of relevance so not to get lost in an abundance of information that detracts from the matter in hand.
Call our employment advice line on 014 956 6361