Read this only after you’ve read the Incident Reports post.
So, after you’ve gathered the raw data from the incident reports, you try making sense of them all through an Administrative investigation. The main task at this point is to piece together all the incident report narratives to create a holistic (and accurate) picture of what really happens during an incident.
How do you know if you have gathered enough raw data? You should be able to answer these questions:
- Is it clear what actually happened?
- Can I point out who is responsible? Were there other people who should be considered as accomplices?
- How was the violation done?
- What is missing? What damages did the business incur?
- What can we do to prevent this from happening in the future?
- If you can honestly answer these things, then you can proceed to the next phase which is the issuance of the Notice to Explain.
What do you do if the pieces are still incomplete?
Remember that the law provides you with a wide latitude when it comes to disciplining your employees. This is within the scope of your management prerogative. Let’s explore the options available to you if you still need more data.
1. More Incident Reports
You can ask your team members to clarify their initial reports or to issue an entirely new one to answer additional questions.
2. Conference
You may call them to a conference to clarify certain things in their incident reports or ask clarificatory questions. Take note that this is different from the formal hearing where you ask them to defend themselves. Your mindset at this point is just to get to the bottom of things… to find out what happened. This is not the time to accuse them, to get them to answer, to announce the charges. Again, you are just gathering data. That’s how you approach this.
Imagine a detective called to the scene of the crime. You take pictures, ask questions and pick up evidence. This is the part you’re playing at this point. Once you have suspects, you pick them up later to be charged (key word is later). For now, focus on data gathering.
3. Gather Supporting Documents
You can start gathering supporting documents. What are supporting documents? These are the records which are relevant to the case aside from incident reports and statements. Some samples include: CCTV, accounting records, security logs, audit trails, file backups, logbook copies, pictures, items which were included in the case, etc. The rule of thumb is gather everything that may have been remotely related to the case.
Timing matters
I had a client once who wanted to investigate warehouse theft. He took his time gathering evidence. When I asked to get copies of CCTV files, his face turned ashen as he remembered that their CCTV erases its records after a week to save on disk space. Good thing I was able to prove the theft with other evidence, but we lost a cruicial piece of evicence which should have guaranteed a landslide at the time.
“But Attorney, isn’t this the Notice to Explain?”
No. We have to make a distinction. At this point in time, there is no formal accusation yet. We are just trying to figure out what happened so we can decide if we want to continue with disciplinary procedures afterwards.
“Attorney, wouldn’t we be replicating the same procedure when we issue the Notice to Explain? Isn’t this a waste of time?”
Remember that the labor code is partial towards protecting the employees. In the law’s eyes, the employer has to prove the violation exists. Therefore, it pays to create a buffer or an abundance of evidence to show that you followed due process. When talking about evidence and proof, you can never get enough. Stated otherwise, there is nothing in the law which penalizes you for being thorough with gathering information and evidence.
So, what’s the effect if you ask questions here and after verification, you still ask them to explain that in the If you are unclear, this is the right time to clarify. At most, you will be accused of providing your employees multiple times to present their side and defend themselves. You made them… uhm… exercise excessive due process rights. Last I checked, that’s a good thing.
So to recap. Don’t close this phase of the discipline process unless you can answer the checklist questions above. Don’t be embarrassed to ask if there are pieces of the puzzle that are unclear to you. This is the proper time to do this.
