Taking disciplinary action against an employee is perhaps the most challenging task for an employer. This is because in most cases of employee wrongdoing the employer must assume the technical roles of investigator, prosecutor and judge while owing an overriding duty to treat the employee fairly. The body of employment law in Fiji shows that employers can pay a high price for getting any of these stages wrong.
In this commercial law update, we consider the first stage of the disciplinary process - being the investigation to establish the facts of the matter. While in Fiji this stage is usually conducted by the employer, in other jurisdictions, like Australia, NZ, and Malaysia, an employer may seek a qualified third party to undertake an investigation.
In January 2019, the Fiji Law Society organised and hosted the LawAsia Employment Law Forum during which a senior employment lawyer, Mr Brian C Willamson distilled his many years of expert knowledge into a presentation about how to conduct disciplinary investigations to be “effective and fair”. While, it is likely that most employers due to limited resources and qualified investigators will still have to undertake their own investigations, Mr. Williamson’s detailed and expert knowledge provides valuable insights into this process.
Delegates at the LawAsia Employment Law forum, 25-26 January 2019
In our previous employment law updates we have set out what happens when an employer gets a summary dismissal wrong and provided an update on the circumstances that may lead to a summary dismissal.
On 25-26 January 2019, and thanks to the admirable organisational efforts of the Fiji Law Society, Fiji hosted a LawAsia conference for the first time.
While all the talks were stimulating and provided useful insights for practitioners, Mr. Williamson’s was possibly the most practical for Fiji’s employers as it focused on the investigation process with the express aim of making this stage of the disciplinary process “effective and fair”. The comments Mr. Williamson made, applicable to employment conditions in Fiji can be summarised as follows:
Mr. Williamson’s essential point was that an effective disciplinary process was not one that resulted in the termination of an employee, but one that objectively, fairly and professionally considered the accusation, and the facts and came to a reasonable conclusion. This approach could equally exonerate an employee as find the accusation proven.
Conclusion
Mr. Williamson’s final conclusion was to remind practitioners that getting a disciplinary process right was like baking a cake. If an ingredient is missed, then the final product will not be optimal.
As mentioned at the outset, not every employer will have the resources to hire an external investigator in every case of employee wrongdoing, however, the lessons provided by Mr. Williamson are a useful and timely reminder of the importance of fair, and objective disciplinary investigations.
With thanks to: Brian Williamson for reviewing a draft of this commercial law update and for his expert and valuable insights:
Brian Williamson has been a solicitor and advocate in Australia since 1981 and an Accredited Specialist in Industrial Relations and Employment Law since 1994. Within these contexts he has had 25 years’ in leadership roles in three high profile law firms, 20 years’ as a workplace investigator, 10 years’ as a company director of a major NPF business with $80m/pa turnover, 6 years’ conducting Code of Conduct reviews for a large NSW Local Council and 5 years lecturing at university level. He has a deep and continuing interest in LawAsia.
For more information on LawAsia please see here
This commercial law update is provided for general information purposes only and is not, and should not be relied upon, as legal advice.