he above-quoted provisions are no longer reproduced in the present Omnibus Rules, as amended by Department Order No. 40, Series of 2003, which supersedes Department Order 9-97. It is opined, however, that the removal of said provisions from the omnibus rules did not diminish the right of the employer to impose preventive suspension, considering that the justification for upholding the right is necessity itself, i.e., when continued employment poses threats to the life of the employer or his co-worker.
Conducting Employee Investigations
Source of Allegations of EE misconduct• You will not personally witness every act of misconduct alleged to have been committed by your employees. Allegations of employee misconduct can come from a variety of sources.• MOST COMMON SOURCES:• CO-WORKERS (superiors, subordinates, etc)• CUSTOMERS/CLIENTS
What is your role in the area of EEinvestigations?• You are responsible for recording the allegation in as factual and complete a manner as possible, asking the source of the allegation such questions as:• 1. What occurred?• 2. When did it happen (time/date)?• 3. Were there any other witnesses to the event?• 4. Any other details pertinent to the complainant’s observation of the event.• When the investigation is the result of an allegation, try to get written statement from the reporting party.
Should the employee be removed from thework area during the investigation?• In some circumstances, it may be appropriate for the accused employee to be away from the work location during the investigation. In determining whether to leave the accused employee in the work area, assign them to work at home, or to assign them to another location/set of duties, the following should be considered:• • Could the accused hinder the investigation by corrupting data or removing/destroying other evidence?• • Could the accused cause further harm if left in their current position?• • Is the accused a potential danger to others?
Preventive Suspension• The right of employer to impose preventive suspension is not found in the Labor Code itself. The oft-cited legal basis for imposition of preventive suspension is Section 8 and Section 9 of Rule XXIII, Book V, of the Omnibus Rules Implementing the Labor Code, as amended by Department Order No. 9, Series of 1997, • Section 8. Preventive suspension. The employer may place the worker concerned under preventive suspension only if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers. • Section 9. Period of suspension. No preventive suspension shall last longer than thirty (30) days. The employer shall thereafter reinstate the worker in his former or in a substantially equivalent position or the employer may extend the period of suspension provided that during the period of extension, he pays the wages and other benefits due to the worker. In such case, the worker shall not be bound to reimburse the amount paid to him during the extension if the employer decides, after completion of the hearing, to dismiss the worker.
Your responsibilityif the allegation is of criminal action?• Document the allegation accurately and completely. Take careful, legible notes of what the complainant says, your own follow-up questions, and the answers to these questions.• Immediately notify your manager and if possible, legal counsel
Supervisor’s/HR’s responsibility when the alleged misconduct is of a non-criminal nature?• After getting the initial information, the supervisor should:• 1. Contact HR for guidance on planning the investigation.• 2. Develop a list of questions or issues that need to be answered to determine if the allegation is true.• 3. Make a list of potential witnesses who may help answer those questions.• 4. Make a list of documents (e.g. time cards, work products, written policies) to be reviewed.• 5. The next step is usually to interview the employee who is the subject of the allegation. (if you are a supervisor) This may not always be the best strategy, and your initial consultation with HR will cover this aspect of your investigative plan. • Note: The employee who is the subject of the allegation, and any other employees you interview as witnesses have a right to union / legal representation if they request it.• 6. Maintain a legible and orderly file of all materials assembled during the investigation. This includes your interview notes, documents reviewed, and any written statements from the complainant or witnesses. This file, known as the investigatory file, will form the basis for any disciplinary action that may result from the investigation and will be relied on to support any such action.
What is the investigatory file usedfor?• The materials in the file will be reviewed to determine whether there is sufficient proof to sustain the allegation and, if so, to determine what level of action should be taken. If disciplinary action is initiated as a result of the investigation, the file becomes the "material relied on" in taking the disciplinary action.• Once an employee receives the Skelly letter proposing discipline, he/she and the union has a right to obtain and/or review all of the materials which were “relied on” in proposing the action. It is critical that this material be assembled and copied prior to issuance of the intent letter so it can be given to the employee if they request it.