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The Hard Conversations: Why HR Must Learn to Investigate Allegations of Misconduct Properly HR often finds itself at the crossroads of ethics and accountability, carrying a reputation that’s—let’s face it—not always favorable. When faced with allegations of misconduct, HR teams have the power to build trust or shatter it completely. It’s a responsibility that requires more than policies; it demands empathy, courage, and the right training to act decisively and fairly. A conversation I had years ago with my late father often comes to mind when I think about the importance of this. My father was an administrator for the Western Montana Mental Health Center, and he faced a situation that tested his resolve. Complaints came in that a counselor—one of my father’s friends—was making female colleagues uncomfortable with his behavior. These were no small allegations; they involved inappropriate touch and a breach of professional boundaries. For the first time, my father sought my opinion. I could see the weight of the dilemma on his shoulders; he was torn between his duty and his loyalty to a friend. My advice was simple, but I knew it would be hard for him to hear: he had a legal obligation to investigate and address the issue. His role wasn’t just to protect the organization but to ensure a safe work environment for all employees. Eventually, my father did the right thing—he investigated thoroughly, and when the counselor’s behavior continued, he made the difficult decision to terminate his long-time friend. It wasn’t easy, but it was right. Contrast that with my experience years later. While working at Providence, I went from an employee to a patient and endured an unimaginable, traumatic experience under their care. Despite completing a survey detailing the incident and escalating the matter through the appropriate channels, there was silence. Emails to leadership, letters to the CEO—none of it sparked an investigation. I found myself navigating the aftermath, not just of the trauma but of the neglect I faced from the very organization where I worked. When I eventually resigned because I could no longer trust my employer, I sent my supervisor an email detailing my experience, hoping to prompt some sort of response. Her solution? She attached a grievance form, as if my trauma could be neatly filed away into an administrative black hole. There was no inquiry, no accountability—just a closed loop of “passing the buck.” So, what went wrong here? And why does this story matter for HR professionals everywhere? Training. HR needs to be more than a function; it needs to be a commitment— to take action, to investigate misconduct, and to advocate for those who trust the system to protect them. HR teams must learn to navigate sensitive, often uncomfortable conversations with diligence and care. Ignoring allegations or shuffling complaints through layers of bureaucracy not only erodes trust but exposes the organization to legal and reputational risks.

Case: HR Manager Faces Complex Employee Complaint in a Five-Star Hotel Scenario: An HR manager at a prestigious five-star hotel receives a complaint from a guest services representative alleging sexual harassment by a senior manager. The employee claims that the manager has made inappropriate comments, unwanted physical contact, and has created a hostile work environment. Challenges: * Reputation management: A sexual harassment allegation can severely damage the hotel's reputation, especially in the hospitality industry where customer service is paramount. * Employee well-being: The employee may be experiencing emotional distress and may require support and counseling. * Legal implications: If the complaint is substantiated, the hotel could face significant legal consequences, including lawsuits and fines. * Power dynamics: The senior manager's position of authority may make it difficult for the employee to come forward and may influence the investigation process. Solution: * Immediate Action: * Acknowledge the complaint: Assure the employee that their concerns are taken seriously and will be investigated promptly. * Confidentiality: Maintain strict confidentiality throughout the investigation process to protect the employee's privacy and avoid retaliation. * Internal investigation: Launch a thorough investigation, involving HR representatives, legal counsel, and possibly an external investigator if necessary. * Gather Evidence: * Collect documentation: Review relevant documents, such as emails, text messages, and witness statements. * Interview witnesses: Speak with colleagues, supervisors, and other relevant individuals to gather their perspectives and information. * Review company policies: Ensure that the company's policies on sexual harassment and discrimination are clear and up-to-date. * Provide Support: * Offer counseling: Provide the employee with access to counseling services to help them cope with the emotional impact of the incident. * Temporary reassignment: If necessary, consider temporarily reassigning the employee to a different department or location to protect their well-being. * Take Corrective Action: * If the complaint is substantiated: Implement appropriate corrective measures, such as termination of employment, disciplinary action, or remedial training. * If the complaint is not substantiated: Provide the employee with a clear explanation of the findings and offer support or counseling if needed. * Prevent Future Incidents: * Review policies and procedures: Strengthen the company's sexual harassment policies to prevent similar incidents from occurring in the future. * Provide training: Conduct regular training sessions for employees on sexual harassment, consent, and respectful behavior.

Poor Performance is not a Misconduct The LRA Code of Good Practice (Schedule 8): Dismissal, emphasises that poor performance be treated as a form of INCAPACITY, not misconduct. This means the employer needs to follow a fair procedure for dealing with Incapacity- poor performance; identifying the causes & offering support for improvement including performance improvement plans that depending on the causes; implement on the job training, counselling, coaching/mentoring, formal training etc. There are a number of issues that can lead to poor performance: lack of training, unclear expectations, or personal issues. This is the reason why poor performance is treated as "no fault" from the employee, unlike misconduct, where a guilty employee is at fault. This is why terminations of employment for Incapacity (and operational requirements) are usually with notice, whereas dismissal for misconduct is usually summary dismissal(without notice). managers must investigate the reasons for poor performance, providing the employee with a written notice outlining the concerns and potential consequences, and offer support to improve performance. Termination of employment should be considered only as a last resort, where all reasonable efforts to improve performance have failed. Termination of employment must be preceded by an incapacity hearing (this means the employee must afforded an opportunity to respond and state their side of the story in relation to the alleged poor performance and employers contemplation of termination of employment) before a final decision is made by the employer. Misconduct v Incapacity Poor Performance: Misconduct: is INTENTIONAL or NEGLIGENT violation of workplace rules, policies, or standards of behaviour. For example, this could include things like dishonesty, insubordination, or carelessness. Whereas Poor Performance: is the INABILITY to meet the required standards of performance, often due to a lack of skill or knowledge. This inability could lead to missing deadlines, failing to meet performance targets, or producing work of substandard quality. It is important for managers to understand the disticntion between these concepts, so that they follow the appropreate procedure in resolving the issue. Misdiagnosis of misconduct as poor performance or vice versa, can lead to ineffective improvement or corrective measures and potential legal trouble for employers. Imagine if you take an employee to a displinary hearing for poor performance and ultimately dismiss the employee for what should have been treated as incapacity and not misconduct, they could have grounds for an unfair dismissal claim. The fair procedure for dealing with misconduct is different from the procedure for dealing with incapacity (poor performance). For misconduct, a disciplinary hearing is usually required, whereas as mentioned before, for incapacity, the focus is on identifying the cause and offering appropreate support for improvement.

Conducting Thorough Employee Misconduct Investigations When dealing with employee misconduct, HR professionals must follow a structured process and remain impartial. As HR expert John Doe states, "Conducting thorough and impartial investigations is crucial for maintaining a safe and ethical workplace." To guide you through the investigation process, here are some key steps: 1- Gather Comprehensive Information Start by finding out as much as possible about the incident. "Ensure that you collect all the facts," advises HR consultant Jane Smith. Consult your organization's code of conduct and reach out to all involved parties to gather information from every source. 2- Conduct Formal Interviews Formally interview the complainant, accused, and any witnesses. "Document and record the interviews," recommends HR manager Alex Johnson, "to build a strong case of evidence." 3- Report and Record Findings Compile a complete report of the misconduct and present it to relevant stakeholders. As HR director Emily Davis notes, "Keep a paper trail and audit evidence throughout the process." 4- Decide on Appropriate Action Choose a course of action based on the report, considering both internal and external guidelines. "Select a response that is fair and in line with your organization's policies," says HR VP Sarah Lee. 5- Communicate Outcomes Transparently Inform the complainant and accused of the course of action, and be willing to amend it if necessary. "Keep all the parties informed of your progress," advises HR specialist Michael Chen. 6- Ensure Impartiality and Fairness Treat all parties objectively, handling the accusation based on facts rather than personal opinions. As HR director Emily Davis emphasizes, "Ensure that you collect all the facts and keep a paper trail and audit evidence." By following this structured approach and maintaining impartiality, HR professionals can effectively navigate employee misconduct investigations and ensure a fair outcome for all involved.

Today is Day 3 of our Workplace Investigations Training in our partnership with CPHR BC & Yukon. I begin the day with a module called Investigating the Dark Triad in the Workplace. It is one of our more popular modules as the learners (primarily HR professionals) process the information through the lens of highly problematic employee behaviors. I am nearing the 40-year mark of successfully conducting, case managing, or overseeing investigations of all kinds and complexities (serious criminal, human rights, workplace, regulatory, sport, person-on-person, fraud, theft and so on) Becoming a lifelong student of the human condition is critical to success in the investigative field. When I was first exposed to the concepts of psychopaths at work (Snakes in Suits - Hare and Babiak) - my eyes were opened. Farther along the study of dark personality traits comes the academic and peer-reviewed concept of the Dark Triad. I continue to learn about and teach these theories as a way of equipping those tasked with investigations with the understanding and skills to effectively investigate cases involving dark personality traits. These are marked by the following: Factor 1 Manipulative/Unethical Superficial charm Grandiose sense of self-worth Pathological lying Conning/Manipulative Factor 2 Callous/Insensitive Lack of remorse or guilt Shallow affect Callous/lack of empathy Failure to accept responsibility Cases involving dark personalities are not your normal "personality conflicts" or other conflicts in the workplace that can be managed by reason, training, coaching or mediation. They are not your usual lower-level bullying types of cases. Persons with Dark Triad traits like nothing more than a well-intended but naive approach to their conflicts, such as attempts at mediation or coaching. Anyone tasked with serious investigations involving person-on-person allegations of misconduct, (criminal or administrative in nature), are encouraged to learn more about the dark personality traits that are exhibited by an estimated 5% +/- of our society, and workforce. Consider checking out the work of Cynthia Mathieu Ph.D. to learn more. You can read Cynthia's blog on the topic here: https://lnkd.in/g8_unHQC

HR professionals should consider attending our 2-Day Internal Investigation Certificate Program for a multitude of compelling reasons, especially given our instructor extensive experience of 29 years conducting internal investigations. Here are some key points that highlight the importance of our program: ✅ Expert Guidance: With nearly three decades of experience, our instructor brings a depth of knowledge and expertise that is invaluable. Participants will learn not only the fundamentals but also advanced techniques in conducting effective internal investigations from a seasoned expert. ✅ Legal Compliance: Internal investigations are often mandated by law when allegations of workplace misconduct arise, including harassment, discrimination, and retaliation. ✅ Proper handling of these investigations is crucial to comply with various legal standards and to protect against potential litigation. Our program will provide HR professionals with the necessary skills to navigate the complex legal landscape. ✅ Protecting Organizational Integrity: Effective internal investigations help maintain a safe, ethical, and compliant workplace. By attending this program, HR professionals will learn how to conduct investigations that uphold the integrity of their organizations, fostering a culture of trust and respect among employees. ✅ Risk Management: Properly conducted investigations mitigate risks by addressing issues before they escalate. Training in internal investigations equips HR professionals to identify, investigate, and resolve issues efficiently, reducing the potential for costly legal battles and reputational damage. ✅ Skill Development: Our program enhances critical HR skills, including interviewing techniques, evidence gathering, legal documentation, and the ability to make unbiased decisions based on findings. These skills are not only applicable to investigations but are also valuable in other areas of HR management. ✅ Building Confidence: Knowing how to handle complex and sensitive issues confidently is crucial for any HR professional. Our program provides the knowledge and practice needed to manage difficult situations with confidence and discretion. ✅ Networking Opportunities: Attendees will meet other HR professionals, which can lead to the sharing of best practices and experiences. This networking aspect can be incredibly beneficial, providing additional insights and professional connections. By focusing on these areas, our 2-Day Internal Investigation Certificate Program stands out as an essential investment for HR professionals who aim to enhance their capabilities, ensure compliance with employment laws, and effectively manage workplace investigations. For a detailed overview of our 2-Day Employee Relations Investigations Certificate Program's agenda and to register, please access the link provided below: https://lnkd.in/eKQcsc3N

Case: HR Manager Faces Complex Employee Complaint in Oil and Gas Sector Scenario: An HR manager at a major oil and gas company receives a serious complaint from a long-serving employee. The employee alleges workplace discrimination based on age and gender, claiming they were unfairly overlooked for a promotion in favor of a younger, male colleague with less experience. The employee also states that they have faced a hostile work environment, including derogatory comments and exclusion from team activities. Challenges: * Sensitive nature of the complaint: Discrimination allegations can be emotionally charged and damaging to both the employee and the company's reputation. * Potential legal implications: If the complaint is substantiated, the company could face significant legal consequences, including fines, lawsuits, and damage to its brand. * Impact on workplace morale: The complaint could create a toxic work environment, affecting employee morale, productivity, and overall job satisfaction. * Lack of evidence: Gathering sufficient evidence to support or refute the employee's claims can be challenging, especially if there are no written records or witnesses. Solution: * Immediate Action: * Acknowledge the complaint: Assure the employee that their concerns are taken seriously and will be investigated promptly. * Confidentiality: Maintain strict confidentiality throughout the investigation process to protect the employee's privacy and avoid retaliation. * Internal investigation: Launch a thorough investigation, involving HR representatives, legal counsel, and possibly an external investigator if necessary. * Gather Evidence: * Collect documentation: Review relevant documents, such as performance reviews, emails, and promotion criteria. * Interview witnesses: Speak with colleagues, supervisors, and other relevant individuals to gather their perspectives and information. * Review company policies: Ensure that the company's policies on discrimination, harassment, and promotion procedures are clear and up-to-date. * Mediation or Arbitration: * Explore alternative dispute resolution: Consider mediation or arbitration as a potential solution to resolve the dispute without resorting to litigation. * Take Corrective Action: * If the complaint is substantiated: Implement appropriate corrective measures, such as disciplinary action against the offending party, remedial training, or policy changes. * If the complaint is not substantiated: Provide the employee with a clear explanation of the findings and offer support or counseling if needed. * Prevent Future Incidents: * Review policies and procedures: Strengthen the company's anti-discrimination and harassment policies to prevent similar incidents from occurring in the future. * Provide training: Conduct regular training sessions for employees on workplace discrimination, harassment, and respectful behavior.

WORKPLACE COMPLAINTS Could workplace complaints be art of whining and advancing your career as an employee? Every employee wants their ideas heard and implemented by their bosses or supervisors. In a toxic work environment, the managers destroy their employees’ character while passing a point. It gets personal and working becomes a nightmare. Before an employee lodging a complaint, you should have a purpose. When handling a complaint, focus on the deed and not the doer. While airing your grievance, ensure your tone is constructive and calm. The rule of a thumb when lodging a complaint is never do it in public. If you show what they are doing is making you unrespectable, support your claims with evidence or proof. Be precise or exact while giving your evidence, have a date and time when it happened e.g. if they are abusive have other employees affirm your accusations. The aggrieved staff should have talked to the supervisor about it first. If the latter mentioned is not amending their ways towards you and it is detrimental, then by all means you take the matter forward. One can complain the right way and get a head by showing initiative and providing solutions. It's human nature to point fingers at the other person but what have you implemented to change the situation? If your supervisor always undermines your ideas and calls you names, you could request him or her to write down an email if possible, which will force them to address you professionally. Ensure the other person feels included because complaints is offering solutions. Quiz: But, how do you ensure you are not complaining to get fired? If one wants to get a head, they would not involve themselves in talking ill about their boss but instead air their grievances to the one involved and offer solutions to them. N/B; managers must remember that their actions and words carry weight and have long-term effect on their team performance

HOW TO CONDUCT AN EFFICIENT MISCONDUCT INVESTIGATION IN THE WORKPLACE By Magate Phala, Director at Magate Phala & Associates When allegations of misconduct arise within a workplace and are brought to the attention of Management, it is advisable for the employer to assess the severity of the allegations to determine whether or not such allegations warrant a formal investigation. Prior to initiating disciplinary charges against an employee, it is vital for the employer to ensure that they have a reasonable basis, at a minimum, to believe that the employee has committed or may have committed the misconduct. According to Professor John Grogan in his book titled “Dismissal” Third Edition Juta 2020 on page 322, a prehearing investigation is precisely what its name suggests. During this phase, the employer investigates the offence in order to decide whether formal disciplinary action may be justified. This will normally entail interviewing witness, including possibly, the suspect (s), and inspecting relevant documents. If suspects are interviewed, they should be informed of the reason for the interview and advised of their right to be accompanied by a union representative or fellow employee. It is also advisable to record the contents of pre-hearing interviews, either in writing or electronically. If a tape recorder or videotape is used, the interviewee should normally be informed. Statements may play an important role during the disciplinary inquiry. If they are not used for purposes of cross examination or in evidence, the employer is not obliged to disclose them to the accused employee. It may also be a sensible precaution to require witnesses to depose their statements in affidavit form. Employees interviewed during workplace investigations are required to assist the investigators. They cannot rely on the “right to silence”, even if they are implicated. It is the responsibility of investigators to ensure that employees who are accused or suspected of misconduct are afforded an adequate opportunity to provide their responses to the allegations made against them. In Msiza v Motau N.O and Another 2020 (6) SA 604 (GP), the court held as follows at para 55; “In my view where an investigator knows or is expected to foresee that his findings, remarks and conclusions will have consequences for the party on whose behalf an investigation is conducted and for the party against whom findings will be made, he is obliged to listen to both sides and, the partly who is likely to be affected by adverse finding is entitled to demand the right to be heard before an adverse remark or finding conclusion or decision is made against him or her”. This article was initially published by SA Labour Guide https://lnkd.in/dFraBhzF

Facts as a Human Resource Professional Fact No.1 Ethical Conduct: HR professionals are entrusted with ethical responsibilities, including promoting fairness, diversity, and inclusion in the workplace. They must demonstrate integrity and uphold ethical standards in all HR practices.   Ethical conduct in HR is paramount as HR professionals hold significant responsibility for upholding fairness, integrity, and respect within the workplace. Here are some key aspects of ethical conduct in HR:   ·       Confidentiality: HR professionals handle sensitive employee information such as personal details, performance evaluations, and disciplinary actions. Respecting confidentiality is crucial to maintaining trust and privacy within the organization. ·       Fair Treatment: HR professionals must ensure that all employees are treated fairly and equitably. This includes recruitment, compensation, promotions, and disciplinary actions. Discrimination or favoritism based on factors such as race, gender, age, or religion is unethical and illegal. ·       Compliance with Laws and Regulations: HR professionals must adhere to all applicable labor laws, regulations, and company policies. This includes laws related to employment discrimination, harassment, wages, hours, and workplace safety. ·       Integrity in Recruitment and Selection: HR professionals should conduct recruitment and selection processes with integrity, ensuring that candidates are evaluated based on merit, qualifications, and job-related criteria. Misrepresentation of job opportunities or misleading candidates is unethical.   Overall, being an HR professional requires a combination of interpersonal skills, business acumen, legal knowledge, and ethical conduct to effectively support the organization and its employees.