How sure must you be that you have your facts right before dismissing an employee for misbehaviour?
You usually can’t be 100% certain that they did what you have alleged.
If you didn’t see it with your own eyes, you will need to rely on what others say they saw or heard to reach a decision.
And because there are two sides to every story, you’ll often find yourself in a “he said/she said” scenario.
You’ll have to make a judgment call about whom to believe.
Should you believe your employee at the centre of the allegations or the witnesses to the event?
STANDARDS OF PROOF AND PROCESS
Judges have to deal with this sort of issue all the time.
You can imagine how they are frequently met with competing testimonies in court and have to decide whom to believe.
In doing so, they must apply strict rules about how evidence is given, and allow each witness a full and fair opportunity to say what they wish.
While they know they cannot be 100% certain about who is in the right, they apply a threshold of certainty to guide them in their thinking.
These thresholds are called “standards of proof”. They differ between civil and criminal cases.
The civil standard of proof is that you only need to show that something is more likely than not correct. That is, to believe someone’s case, you only need to have shown that it was more than 50% likely.
The criminal standard of proof is that you must be left without any reasonable doubts. So that is much higher. This standard implicitly recognises that the judge will always have some doubts. Yet, if those doubts are insignificant or unreasonable, they can disregard them.
What about employers then? Must they be as rigorous as a judge would be in determining whom to believe? What standard of proof must they apply?
THE COURT OF APPEAL WEIGHS IN
The Court of Appeal has recently clarified that as an employer, you need not be held to the standard that a judge would in a civil or criminal case when carrying out your investigation into an allegation about one of your employees.
Instead, the Employment Relations Act 2000 requires only that you act fairly and reasonably when you come to a decision.
That means, for example, that you do not necessarily have to question every witness in exactly the same way. The rules about evidence that apply in a court trial, simply don’t apply.
Of course, that does not mean you can do a half-baked job of your investigation. You must still show that you have acted fairly and reasonably.
But the Court confirmed that “there may be a variety of ways of achieving a fair and reasonable result in a particular case,” and the approach that you adopt in your investigation should not be scrutinised in a pedantic way to find fault.
The key issue will be whether you have taken an approach that, if you look at all the circumstances, was substantially fair.
Fret not, employers. You aren’t required to be judge-like in your decision-making. You merely have to do the job that a fair and reasonable employer could do.
That doesn’t get you off the hook, of course. A reasonable job of investigating still takes some effort and must be, overall, substantively fair.
But know that you won’t be over-scrutinised on every detail.