Integrity

Trust, Service

& Accountability

Behaving Ethically

Scenario 11 - Investigating allegations of misconduct

Lucia is a senior executive with responsibility for a policy division of a large government Department. Jane is an advisor working in Lucia’s division. While Jane generally produces work of an acceptable quality, she is a difficult employee and is not well-liked by many of Lucia’s executive colleagues.

Recently, Jane was the subject of a serious allegation, which, if proved true, would constitute misconduct and would be a basis on which to dismiss Jane. An independent investigator is appointed to inquire into the allegation. The investigator reports his findings to Lucia, who is asked to make a decision on what should happen as a result of the findings. 

The investigator’s report concludes that the misconduct allegations against Jane are probably true. However, while Lucia notes there is some solid evidence against Jane, she is not comfortable with some of the methods the investigator has used to reach his conclusion - the investigator has not contacted Jane to provide her with an opportunity to respond to the allegations, and has relied heavily on evidence given in interview by an executive who has a fractious history with Jane because of her active role as a union delegate. As part of the investigation process, the investigator has also collected a range of information about Jane’s personal life which suggests Jane may not behave impeccably outside work hours.

What should Lucia do?

  1. Lucia should dismiss Jane. While the investigation process was not perfect, you must demonstrate support for your managers against potential troublemaking staff. In addition, another investigation would almost certainly reach the same conclusion, be a waste of public time and money, without any change to the end result.
  2. Lucia should dismiss Jane because on balance this represents the least risk for the Department. The longer Jane stays employed in the Department, the greater the risk she will continue to commit misconduct and endanger the reputation of the Department. There is evidence available at hand to justify dismissing Jane, and Lucia should make use of it.
  3. Lucia should arrange for a new investigation or for further enquiries to be carried out.  Even though this may not change the end result, the priority should be to ensure that procedural fairness is respected, even if this extends the investigation process, costs money and cause continued discomfort for her managers.
  4. Lucia should not dismiss Jane. The investigation was probably flawed. The underlying problem is the HR management skills of her managers.  Lucia should instead organise some advanced performance management training for all her managers.


About the possible answers

Re: a

The ends (dismissing someone management considers to be a troublesome employee whose personal behaviour outside of work may be embarrassing to the agency) do not justify the means (the use of unethical practices to gather information to justify her sacking).  When making decisions that affect the rights, interests or legitimate expectations of individual employees, it essential that procedural fairness is observed (particularly in line with the values of integrity and accountability in the government sector). This includes where there has been an alleged breach of the Code of Conduct. While it may be inconvenient for the Department, Lucia should ensure that the investigation has been fairly conducted before making a final decision.

Re: b

As for answer A - Lucia needs to ensure that her decision making is fair and reasonable, rather than just risk-averse. Furthermore, relying on flawed investigation evidence creates its own significant risks for the Department of potential legal action in the future.  Supporting managers who have acted unethically (for example, by not conducting a fair and transparent investigation) encourages continued unethical conduct by managers and makes Jane herself party to an unethical and potentially illegal process.

Re: c

THE BEST ANSWER FOR YOUR WORKPLACE?

When investigating an allegation of conduct that is contrary to the Code, senior executives should ensure their decision making is fair and reasonable, and that their managers always act consistently with the principles of procedural fairness. While one of these principles is to ensure that matters are resolved in timely manner, this should not override broader rights to procedural fairness, including the right for subjects of an investigation to respond to allegations made against them. It may well be that Jane did commit misconduct and should be dismissed, but this should only happen after a fair investigation.

Re: d

While the principles of procedural fairness were not observed, the fact remains that there has been a serious allegation made against Jane. While a flawed investigation should not be the basis on which to dismiss Jane, neither should it be the basis on which to excuse her from alleged serious wrongdoing.  Focussing on individuals (removing Jane, upskilling your managers etc) is simplistic and ineffective if the real causes of disharmony are the workplace’s culture, systems and/or work practices.  If there is an ongoing pattern of workplace discord, senior executives may need to investigate the systemic root causes of the problems and develop solutions which will deliver better services and greater workplace harmony.