Workplace Investigations uncooperative respondents
Workplace Investigations uncooperative respondents – What can I do with a respondent that is avoiding coming to an interview to discuss misconduct allegations?
Firstly it is important to understand that a respondent has a right to be heard, but if they choose not to exercise that right in a reasonable manner then it will be difficult for them to later rely on a claim that you have not afforded procedural fairness. I have encountered many situations where respondents claim that are not available, too busy or keep cancelling appointments.
1. Be patient, allegations of misconduct are stressful and this may be a reaction to that stress
2. Discuss the issues or their concerns
3. Allow 3 attempts for them to attend an interview (at reasonable times) advise the respondent that if they do not attend an interview the investigation will proceed to a finding based on the information at hand and they will miss out on the opportunity to provide their version of events.
4. You may wish to allow them to respond in writing if it is appropriate
5. Document EVERYTHING, emails, calls and conversations.
6. If you still have no success, proceed with the investigation to a finding and conclusion.
What if the respondent refuses to attend an interview as part of a misconduct investigation? So long as the timing & location of the interview are reasonable.
I would suggest that you advise the respondent of the following;
1. That no conclusions have been reached regarding the truth or otherwise of the allegations provided to you. The process being followed is designed to ensure that you have a full and fair opportunity to respond before any conclusions or findings are reached.
2. That the investigation will proceed to a finding on the basis of information that is currently on hand and by not attending the interview you will not be able to present your version of events.
You may wish to allow a response in writing, if so set a clear and reasonable deadline and remind the respondent that the investigation will proceed if they do not respond in the time frame set. If they continue to refuse or you do not get a response, proceed with & conclude the investigation, make a finding and take the appropriate action.
The trick is be the reasonable party and document everything.
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