All organisations are confronted with the need to make disciplinary decisions from time to time arising out of misconduct of an individual.
This article examines the steps which typically need to be taken by most organisations so as to provide procedural fairness to the person subject to such action. The principles of procedural fairness should be considered in making major disciplinary decisions due to alleged misconduct in broad areas including removal of a board member, termination of employment of a senior executive or expulsion of a child from a private school.
Receiving the Complaint
Almost all disciplinary processes begin with a complaint. The person receiving the complaint generally attempts to obtain preliminary information at the outset. If the complaint clearly has no substance, no further action is generally taken.
However, if the complaint appears to have substance, there are a number of procedural steps which should be taken at this point:
The person initially receiving the complaint should report the matter to the appropriate head of the organisation (eg chief executive officer, chairman of the board, school principal).
The head of that organisation should appoint someone to investigate the complaint. The investigator should be someone who is independent of the parties to the complaint and someone who has the necessary skills to obtain a thorough background to the matter and all necessary factual information. The investigator can be a trusted person from within the organisation and does not necessarily have to be a professional external investigator although this is sometimes desirable in particular circumstances.
The investigator should obtain all relevant factual information from the complainant. In some cases this might involve documents to support the complaint.
The investigator should interview relevant independent witnesses or other people who may be able to provide relevant information in relation to the subject matter of the complaint.
When all this information has been obtained, the investigator should pause and make a preliminary assessment of the merits of the complaint. If at that stage it is clear that the complaint has no substance then the investigator should inform the person who appointed them and recommend that the complaint has not been substantiated and that no further action be taken.
However, in most cases, the situation will not be so clear cut, and the investigator will need to continue the investigation.
Dealing with the Respondent
Perhaps the most crucial task in dealing with disciplinary matters is the proper and fair dealing with the respondent to the complaint.
After having reached the stage of being satisfied that the complaint potentially has substance, the investigator must then appropriately and fairly deal with the respondent. Some of the procedural steps at this stage of the process include:
- The investigator should advise the respondent personally and in writing of the details and allegations that have been made and set a time and place for an interview to further discuss the complaint.
- The time for the interview should be as soon as practicable.
- The respondent should be informed of their right to bring a support person to the interview.
- The venue for the interview should be neutral.
- The respondent should be informed of their ability to rely on witnesses statements or call other people to support his/her position.
- In appropriate cases, it may be necessary to organise an interpreter or be mindful of particular cultural sensitivities.
- At the beginning of the interview, the respondent should be informed of the process that will be undertaken during the interview.
- Wherever possible, subject to issues of confidentiality, the respondent should be fully informed of the allegations which have been made in the complaint and given a copy setting out the elements of the complaint and the evidence which the investigator has obtained.
- The investigator should confirm that the respondent properly understands the nature and seriousness of the complaint.
- The investigator should then invite the respondent to respond to the complaint and put forward his/her version of events together with appropriate supporting evidence.
- Once the investigator has all relevant response material from the respondent, the investigator should inform both complainant and respondent that the matter will be referred to the decision maker for determination.
Making a Decision
Once all relevant information has been received from the complainant and respondent, the investigator should refer the matter to the independent decision maker who will often be the head or deputy head of the particular organisation. There are also a number of procedural steps which must be observed by the decision maker at this stage of the process:
- The decision maker must be unbiased, that is, not have a vested interest in the outcome of the disciplinary process (this can sometimes be difficult for the decision maker, particularly where there has been a long association with either the complainant or respondent).
- The decision maker must carefully look at the factual material obtained by the investigator via the investigator’s interviews with the complainant, respondent and their respective witnesses.
- In arriving at the decision, the decision maker must be persuaded as to the substance (or lack thereof) of the complaint on the “balance of probabilities“. The criminal standard of “beyond reasonable doubt” does not apply.
- The decision maker must carefully consider what would be the appropriate outcome depending on the nature of the complaint and the evidence in support of it and against it. In this regard, it is important for the decision maker to carefully consider whether the proposed “punishment fits the crime“.
- The decision maker must then communicate the decision to the respondent, preferably in writing.
- Where the disciplinary process involves serious consequences, such as removal from a board of governance, termination of employment or expulsion from a private school, reasons for the decision should generally be given in writing.
- Depending on the organisation’s policies and the nature of the disciplinary action imposed, the respondent should be informed of whether a right of appeal exists. If it does, the decision maker should inform the respondent of the process in relation to an appeal.
Organisations in this sector must ensure that their disciplinary policies are based on principles of procedural fairness.
However, merely having a disciplinary policy is not in itself enough. The policy must be carefully followed otherwise there is the risk of not only the decision being challenged but also the process which gave rise to it.
As can be seen from the above commentary, there are a large number of procedural steps which should, in most cases, be followed in order to accord procedural fairness to the respondent of a disciplinary complaint. These steps should be considered as part of an organisation’s risk management strategies and, as such, should be regularly reviewed by senior management.