HR as the complainant in a grievance matter – protecting the integrity of an employee investigation

I am a member of a Human Resource team and with some other members of staff, I received an email from an employee which I find upsetting. I have recommended that senior management undertake an investigation and dismissal of the individual who sent the email. Now, however, I am wondering if I am doing the right thing, considering my role within the company. How should I handle this?

Firstly, you should examine in what capacity you have raised the concern and, whether anyone else has also complained about the contents of the email.  If no one else has, and you are the person who has raised the concern and asked for the investigation process, it may be that you are the complainant in the matter. Therefore, if that is the case, I suggest it would be better if you did not play a HR role in any part of the investigation or disciplinary process.

You will be aware of contents of the LRA Code of Practice on Disciplinary and Grievance Procedures and the main requirements for a fair investigation and dismissal process under Burchell  – namely did the employer genuinely believe the employee to be guilty of misconduct; did the employer have reasonable grounds for believing that the employee was guilty of that misconduct, and at the time it held that belief, had the employer carried out as much investigation as was reasonable?

For you to potentially be the complainant, and HR personnel advising on the process, could compromise the fairness of the investigation and any subsequent disciplinary procedure. Also, subject to the size of the organisation in which you work, different people should be involved at each separate stage of the process rather than HR determining from the outset that there should be a disciplinary process ending in dismissal. As you know, it is necessary to ensure that a fair, independent investigation is undertaken and, firstly to determine if informal action may be appropriate. If disciplinary action with a view to dismissal is taken immediately, there should be clear evidence to show the basis of the decision to initiate disciplinary action, and again ample evidence to demonstrate that the employer had acted reasonably in treating the employee’s conduct as a sufficient reason for dismissal.

To protect the integrity of the investigation and disciplinary process, I suggest it would be inappropriate for you to continue in your role as HR manager, and potentially to influence the outcome of the investigatory/disciplinary process. To continue to act, both as the complainant in the matter and as the member of HR staff advising on the process, would, I suggest leave the employer at risk of allegations of unfair dismissal if the employee was dismissed following your recommendation. You will of course be aware that all internal memos, emails, etc are discoverable in the event that the employee issues proceedings alleging unfair dismissal and consequently, your role/s in the process would be evident.

You will also be aware of case law where it has been held that HR personnel can assist and guide an investigation/disciplinary process, but (in the absence of contractual provisions) cannot also act as the decision-maker in that process. Again, to do so here, would place the employer at risk of complaints about the investigation of the disciplinary process and allegations of unfair dismissal, if the employee is dismissed.

I recommend you consider your role, and the reasons why you have suggested to management that action be taken against this employee. If the investigation has been undertaken only due to your complaint, I suggest it would be more appropriate if another member of the HR team undertook the human resource function in the current process, observing the employer’s policies and procedures. This would allow you to continue as the complainant, providing a witness statement if necessary and allowing you rights and protections as such, and also reduce the risk of any complaints of unfairness, prejudice or that the outcome of the process was predetermined.

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.