During an investigation, it is necessary to consider whether an employee has committed misconduct. In terms of South African law, this requires consideration of whether or not the employee contravened a rule or standard regulating conduct and if so whether:

• the rule was valid or reasonable;
• the employee was aware or could reasonably be aware of the rule or standard; and
• the rule has been consistently applied by the employer.

Determining whether a rule / standard exists

Consideration of whether a rule exists

• The employee’s contract of employment: the conditions of employment contained in the employee’s contract of employment may set out the employee’s duties and responsibilities associated with his/her position and may provide guidance on whether the employee has breached or contravened any of his/her contractual duties.
• Employer’s written policies: policies regulating conduct in the workplace may provide guidance on procedures that must be followed in disciplinary processes (including suspensions), as well as a code of conduct of employees and the manner in which employees must conduct themselves in the workplace.
• Employer’s common and known practices: some rules might not be documented, but may be well known amongst employees. Determining whether a rule exists as a result of a practice requires interviewing other employees to determine the extent of their knowledge of a practice / procedure. Some rules may be so obvious that it is not necessary to document rules prohibiting various misconducts.
• Common law duties: an employee has a duty of good faith towards his/her employer and stands in a position of trust in relation to his/her employer.
• Regulatory duties: depending on the employee’s position, office and the industry of the employer, legislative and other duties and responsibilities may be imposed on an employee. For example, fiduciary duties relating to governance of a Company may be applicable to employees who also serve as directors of a Company. Statutory responsibilities may also be relevant in relation to the use of public finances, for example, the Public Finances Management Act 1 of 1999, and or conduct of an employee of a pension fund in relation to the obligations set out the Pension Funds Act 24 of 1956.

Documentary evidence:

During an investigation process it is necessary to gather as much documentary evidence as possible. This includes written correspondence such as electronic-mails, flight schedules, bank statements, credit card slips and any other documents relevant to the allegations of misconduct and evidence of an employee’s potential knowledge of the rules/ policies applicable to the misconduct.

In some cases, employees may attempt to delete information contained on their work computer relating to the allegations of misconduct. Suspension may be necessary to protect the integrity of an investigation. If an employee is suspended, access to the Company’s computers and the work email must be immediately confiscated. Forensic experts may be able to retrieve deleted data, however, in some instances, this might not be possible and crucial information may be lost. The act of deleting information from a work computer does suggest the intention to conceal information relating to allegations of misconduct.

In many cases, it may be necessary to intercept an employee’s electronic communications on his/her work email or to consider documents saved to his/her work computer. All employees have a right to privacy at common law and in terms of the Constitution. However, that right to privacy is not absolute, and in the context of an employment relationship, there are limitations on the expectations of privacy, specifically in the work place.

The Regulation of Interception and provision of Communication-Related Information Act, 2002 (RICA) deals with the interception of electronic communication (e-mail). RICA provides for two permissible and lawful interceptions of electronic communication, namely:

Section 5: the interception of communication if one of the parties to the communication has given prior consent in writing to such interception.

Section 6: The interception of indirect communication (between two other parties) in connection with the carrying on of business.

RICA makes it permissible for any person, in the course of the carrying on of its business, to intercept any indirect communication by means of which a transaction is entered into in the course of that business, which relates to that business, or which takes place in the course of the carrying on of that business, and which is made via a telecommunications system (email and computer), with the express or implied consent of the system controller (the Employer). The requirements for this interception are the following:

• For the purposes of monitoring or keeping a record of indirect communications in order to establish the existence of facts (which is relevant during an investigation);
• The telecommunication system must be provided for use wholly or partly in connection with the business (emails are sent from a work computer and using work email to employees and consultants of the employer);
• The system controller must have either (a) made all reasonable efforts to inform all potential users of the system in advance that communications may be intercepted; or (b) must have obtained the express or implied consent of the user.

Prior written consent may have been obtained in the employee’s employment contract, or reasonable steps to inform all potential users in advance may include policies expressly authorizing the employer to intercept communication. Such policies must be available to employees.

Video evidence

Depending on the nature of the allegations, CCTV footage may be relevant to an investigation or any other video footage that persons may have taken in relation to an alleged incident.

During the course of the investigation, employers will assist in identifying individuals in video footage, and an inspection of the premises of where the alleged incident occured may be necessary to contextualize the allegations of misconduct.

Interviewing witnesses
It may be necessary to interview a number of witnesses during an investigation process. Ordinarily this includes other employees of the Company, and in certain circumstances (depending on the misconduct), interviewing service providers, such as travel agents, bank managers, and security personnel.

In appropriate cases the employee involved in the allegations of misconduct may be interviewed. Interviewing the alleged suspect is ordinarily undertaken last, after all documentary evidence and witness statements have been obtained. This enables us to test the credibility of the employee who may make contradictory statements and thus give a further indication of their involvement in the allegations of serious misconduct. It also provides an opportunity to consider whether there exist any plausible or reasonable explanations for the allegations of misconduct and which can further be investigated.

In the event of an employee requesting access to his/her work computer during an investigation and for the purpose of an investigation, an image of the employee’s computer should be taken and access to the computer must be strictly monitored and supervised to ensure that no data is deleted.

Communication to the internal audience

It may be necessary to communicate to employees why a particular employee has been suspended and why an investigation has commenced. Such communication is always phrased in general terms using “alleged” “may” “possible” etc, and requires employees not to discuss any aspects of the investigation with the employee in question or to third parties or to the media.

Internal investigations into employees’ alleged misconduct are confidential and private and should not be openly shared with the public or other employees pending the outcome of a disciplinary hearing.

Interim administration

In cases of senior executive employees it may be necessary to put in place an interim and temporary administration process to deal with any of the duties and responsibilities of the suspended employee. This also ensures that the business of the Company continues as normal during the investigation and potential disciplinary enquiry process and allows for a smoother transition in the event that the employee is eventually dismissed.

Additional support: forensic auditors and private investigators

In appropriate cases, it may be necessary to appoint forensic auditors to assess misappropriation of funds and the extent of misappropriation of funds, especially in instances of fraud and theft.

In other cases, the services of a private investigator or tracing agent may be necessary to ascertain whether an employee has privately conducted a separate business in breach of their contractual obligations to an employer or to ascertain other facts not easily identifiable from interviewing employees.

Legal representation during investigation proceedings

An Employer’s disciplinary code may make provision for legal representation during disciplinary proceedings or investigations. However, in the absence of such a provision, no inherent right exists for legal representation and an employer has a discretion to allow an employee to obtain legal representation at his/her own cost during an investigation process.

Legal representation might be requested when investigators request interviews with the employee alleged to have committed the acts of misconduct.

Criminal charges

Depending on the allegations of serious misconduct, it may be necessary for an employer to lay criminal charges against an employee following the outcome of an investigation and a disciplinary proceeding.

Criminal proceedings are generally only commenced against employees once employees are dismissed following a disciplinary process or if an employee resigns. Instituting criminal proceedings prior to the outcome of an investigation may result in a fait accompli being presented to an employee and may render the process unfair.

Civil proceedings

Once a disciplinary process is finalised and if the allegations are serious enough to warrant the sanction of dismissal, employers may consider launching civil proceedings against a former employee to claim damages as a result of the former employee’s acts of misconduct. This may include an anti-dissipation order to freeze an employee’s bank account, and/or proceedings to attach an employee’s immoveable or moveable property.

Civil proceedings may be pursued in parallel to criminal charges laid against the employee.

Written by Randall Van Voore, Partner, Melissa Cogger, Associate, Employment & Benefits, Bowmans South Africa