Should employees participate in investigations if there's no Notice to Explain?

Labor Law Discipline 5 min read , November 14, 2020

What should an employee do if they are being invited to join an investigation? What if there is no Notice to Explain provided? Is the company doing something wrong in this case? Let's tackle that in today's article.

I received an inquiry from a reader:

Hi Atty, my company initiated an internal audit. A few days later, they asked for my laptop and deactivated my company accounts (email and phone). Next, they issued a preventive suspension notice against me. It was quickly followed with an email asking me to attend a hearing/interview. But here's the thing, no Notice to Explain (NTE) was issued. Should I attend this even if there's no NTE?

Let me share some thoughts I had while reading this. I'll share the things that I want to tell the reader, hopefully everyone learns a thing or two.

Mellow Yellow
Photographer: Gabrielle Henderson | Source: Unsplash

3 things that stood out

First, it seems to me that the company intends to clarify certain things with you. The issuance of a preventive suspension points to the fact that a probable discrepancy was detected and your boss wanted to stop any further threats to company property. I'm giving them the benefit of the doubt and assuming that they are complying with the requisites for a proper imposition of preventive suspension.

Next, there doesn't seem to be any indication that you are being charged at this point. The only time you can consider yourself formally charged under the law is when you receive a Notice to Explain. This is required under the law and it makes the disciplinary process defective if it isn't given. Especially if termination is one of the outcomes on the table.

Having said that, I wanted to point out that there is a possibility that the company is clarifying the matter to rule you out as a suspect. They may be trying to help you avoid a full-blown disciplinary case.

There are actually 2 kinds of investigations

In my workshops, I talk about 2 kinds of inquiry. First is the administrative investigation. At this stage, the employer is merely trying to find out what happened. Once they get a sense of the situation, they will be in a position to rule out innocent parties and identify those who should be charged.

Once the administrative investigation is completed, that's when the formal charges are brought. In criminal investigations, this is the equivalent of filing a complaint affidavit with the city prosecutor. In labor cases, the equivalent of bringing formal charges is the issuance of the Notice to Explain. Once that notice is given, it is usually followed by an Administrative Hearing.

Photographer: Campaign Creators | Source: Unsplash

The difference between the two investigations/hearings is huge.

  • In the administrative investigation, nobody is pointing any fingers. This is purely fact-finding. No charges and accusations are being thrown here. There is the invitation to bring light to the situation so that they can exclude you if you are innocent.
  • In the administrative hearing, the employer is accusing the employee here. The mindset is that the employer already thinks you are guilty. You are being given the chance to present your side to change their mind.

How does this apply to you?

Going back to our question, I'm getting the sense that you are being invited to the administrative investigation. Should you go? That really depends on you, but I'm seeing several advantages if you participate.

First, if you are innocent, now is the time to cooperate so that you can clarify things early on. You can help your employer realize this by answering their queries and clarifications. That way, you can clear your name without anything being recorded in your 201 file.

Second, participation shows that you have nothing to hide. If I were the employer, I would have more respect for the employee who actively assists me in getting to the bottom of things rather than the employee who seems evasive. Human experience dictates that you'd be more suspicious of someone who seems defensive. Again, if you are innocent, I don't think you would have anything to lose by helping to clarify things.

Finally, if ever the investigation doesn't go your way and the disciplinary case proceeds, you already have advance information on the nature of the violation. You have more time to prepare your defense adequately because you are now oriented.

Photographer: Etienne Boulanger | Source: UnsplashPhotographer: Caleb Jones | Source: Unsplash

How do you proceed?

At the end of the day, you are in the best position to decide whether you would attend the investigation despite the fact that no Notice to Explain has been issued at this point. Hope I was able to point out certain angles which might not have been obvious initially. This includes the fact that the company may be trying to clear your name before the case gets more serious.

The takeaway here is that if you are innocent, participation in investigations actually works to your benefit. Take advantage of them because the more opportunities to explain, the better the chances that you will lead the employer to realize that you had done nothing wrong.

In case you are guilty, then show the company that you are taking responsibility for the mistake and that you are willing to make amends. That goes a long way in disciplinary matters because it shows your willingness to be accountable and therefore tells your employer that you're worth taking a second chance on.

Hope this helped!

Hope this article was able to teach you more about investigations. This topic usually gets asked when I discuss discipline and termination issues with employers.

I am planning to create more materials to help with discipline issues in the future, but I need your help in sorting out what questions matter. There may be other stuff that you're grappling with but I missed. I'm offering the chance to answer your questions in future materials and courses.

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