How critical is a thorough investigation?

Feb 3, 2025

Uncategorized

A robust investigation is essential to build a strong case and to maintain fairness in the process.

Introduction

Employers often struggle to properly investigate allegations of misconduct or poor performance due to various factors, such as:

  1. Time constraints: Many employers are busy managing daily operations and may not prioritize a thorough investigation, especially if they believe it will consume significant time and resources.
  2. Emotional bias: Employers may have feelings of anger or frustration towards an employee, which can cloud their judgment and lead to a less objective investigation. This emotional response can make them more inclined to rush the process or assume guilt without thorough scrutiny.
  3. Lack of investigatory skills: Some employers may not have the training or expertise to conduct proper investigations. Investigating misconduct requires skills such as interviewing, evidence gathering, and assessing facts objectively, which some managers may lack. Without these skills, investigations may be incomplete or improperly conducted, leading to unexpected outcomes.

This failure to conduct a proper investigation can result in flawed decision-making, legal challenges, a loss of trust within the organization, time wasting, unexpected outcomes and frustration.

Background

In the case of G4S Secure Solutions (SA) (Pty) Ltd v Strauss N.O and Others , the applicant (G4S) sought to review an arbitration award that found the dismissal of Mr. Mlotshwa (the Employee) substantively unfair.

The Employee was dismissed for allegedly causing a traffic accident due to reckless or negligent driving while escorting a client’s vehicle. The accident occurred on a rainy day, and the Employee lost control of his vehicle, which skidded and rolled off the road. G4S argued that the Employee’s driving was reckless, but the Employee contended that poor weather conditions caused the accident.

The vehicle’s internal CCTV footage exposed that the Employee had, while driving in the rain, been holding the steering wheel with one hand and had looked tired. Even though the Employee admitted to driving during rainfall with one hand on the steering wheel while feeling tired, the CCMA found that he had been unfairly dismissed and awarded the Employee retrospective reinstatement.

The Labour Court upheld this decision as well as the CCMA’s order of reinstatement with 15 months compensation.

CCMA

The commissioner found that the Employee’s dismissal was substantively unfair, primarily because G4S did not prove that he was driving recklessly or negligently. The commissioner accepted the Employee’s explanation that hitting a puddle of water caused the accident and that he had taken reasonable steps to mitigate the risk by driving below the speed limit.

The commissioner also found that G4S failed to provide sufficient evidence to show that the speed at which the Employee was driving was inappropriate for the conditions.

The CCMA found that the Employee had been unfairly dismissed and awarded the Employee retrospective reinstatement.

Labour Court (LC)

In its review application, G4S argued that the commissioner misapplied the legal tests for negligence and recklessness, failed to properly consider video evidence of the incident (the vehicle’s internal CCTV footage exposed that the Employee had, while driving in the rain, been holding the steering wheel with one hand and had looked tired), and gave undue weight to photographs taken after the accident. G4S also contended that the Employee’s admission of fatigue should have been seen as a contributing factor to the accident.

The Labour Court dismissed the review application, finding that the commissioner had correctly applied the law and reached a reasonable conclusion based on the evidence. The court emphasized that the employer bears the burden of proving the fairness of a dismissal under section 192(2) of the Labour Relations Act, and G4S had not met that burden. The court also upheld the commissioner’s award of reinstatement with backpay, noting that reinstatement is the primary remedy in unfair dismissal cases.

Conclusion

It appears that the reason for this unusual looking decision was that G4S had been unable to prove that the Employee’s tiredness had been the cause of the accident. In other words, G4S failed to prove a direct link between the Employee’s fatigue and the accident. Moreover, the Employee’s reason for the collision was that the vehicle had hit a puddle of water. It appears that G4S had neither been able to disprove this excuse nor even to deny that the vehicle had hit a puddle or that the puddle did not exist.

G4S, instead of relying solely on the camera evidence and the tiredness of the Employee, needed to have investigated the site of the accident to see whether there had been a depression in the road that could have resulted in the alleged puddle and in the vehicle going out of control.

Had G4S carried out this further aspect of its investigation it may have had grounds to refute the Employee’s claim of a puddle; and this would have strengthened its case.

Key takeawaysAn incomplete investigation can create significant gaps that undermine the employer’s approach, leaving them vulnerable in disciplinary proceedings or legal challenges. A robust investigation is essential to build a strong case and to maintain fairness in the process.

For an investigation to be effective, it must:

  1. Be comprehensive: Investigators need to explore all angles, collecting relevant evidence and considering all potential issues related to the misconduct or performance concerns. This includes interviewing witnesses, reviewing documentation, and examining any relevant systems or records.
  2. Evidence Identification: Investigators must be adept at identifying all forms of evidence—such as documents, records, emails, and witness testimonies. This includes understanding what constitutes relevant evidence and knowing where to look for it within the organization.
  3. Consider employee defences: It’s crucial to address any plausible defences or mitigating factors the employee might raise. Ignoring these can lead to claims of unfairness or bias, which could damage the integrity of the disciplinary process.
  4. Ensure procedural fairness: The investigation process must be transparent and follow established procedures. This avoids perceptions of unfair treatment and ensures that disciplinary actions are based on sound, fact-based reasoning.

By taking this comprehensive approach, employers can protect themselves from claims of unfair dismissal, strengthen their position in any potential disputes, and ensure that the disciplinary process is carried out fairly and lawfully.

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© Maserumule Corporate Employment Law –
February 2025

This information is published for general information purposes and is not intended to constitute legal advice and should not be construed as such. Specialist legal advice should always be sought in relation to any particular situation. Maserumule will accept no responsibility for any actions taken or not taken on the basis of this publication. Consent must be obtained from Maserumule before the information provided herein is reproduced in any way. No person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against Maserumule and/or any of its personnel.

How critical is a thorough investigation?
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