Top 5 mistakes when drafting misconduct allegations

Start the way you mean to finish.

When drafting misconduct allegations, there are four things that an organisation must do to ensure that the allegations are fair and afford the respondent procedural fairness. These can be summarised as follows:

1. Notice of the decision being made.

The respondent must be provided with information about the decision being made by the investigator, which is usually a clear statement (at a high level) of the nature of the alleged misconduct. For example, this might be a statement that the respondent has breached a particular provision of a code of conduct.

2. Notice of the critical issues.

The respondent must be provided with a clear and precise summary of the critical issues underpinning the allegation. The critical issues are those essential matters on which a decision about the misconduct is likely to turn.

3. Provision of the evidence.

The respondent must be provided with information that is relevant, credible and significant to decision regarding the allegation of misconduct.

4. Notice of consequences (if relevant).

If there are possible consequences of any adverse finding against the respondent, the organisation must explain those consequences.

In my time advising organisations on misconduct allegations and investigations, I have seen many examples of poorly drafted allegations. The consequences of poorly drafted allegations include delay, additional costs, a lack of organisational justice and, ultimately, legal risk.

Here are the top 5 mistakes that I have recently seen investigators make when drafting allegations.

Mistake 1: The "and / or" allegation

It can be tempting to make allegations using an "and / or" formulation. Take for example s13(1) of the APS Code of Conduct: "An APS employee must behave honestly and with integrity in connection with APS employment". The allegation might be that the employee's conduct was dishonest and / or lacked integrity.

However, honesty and integrity are not the same thing. You need to prove different matters to demonstrate that certain conduct lacked honesty, as opposed to lacked integrity.

You might be able to get away with this where the conduct could reasonably be both. However, the problem with the "and / or" allegation is usually that the investigator does not have a clear view about the nature of the conduct. If the investigator cannot express a clear view about the nature of the conduct, then they are not clearly communicating the nature of the allegation to the respondent and it is procedurally unfair.

The fix: Get your thinking clear about the nature of the conduct before you make the allegation.

Mistake 2: The "non-exhaustive" allegation

Frequently, I see allegations drafted in the following manner: "You repeatedly refuse to comply with lawful and reasonable directions, including the directions issued to you on 12 and 15 July".

I usually see this allegation where the evidence upon which it is being drafted involves a generalised assertion that the employee "always" fails to comply with directions, and the witness can only recall a limited number of examples.

The problem with the "non-exhaustive" allegation is two-fold. Firstly, it gives the respondent impression that there may be more examples than those that are listed. Secondly, it is a recipe for upsetting the respondent. The respondent will generally view the allegation as an overstatement of the severity of their conduct, as being based on only a small number of examples, and that these things (together) demonstrate bias.

The fix: There are two acceptable ways for proving frequently occurring events, namely: a) by reference to evidence where a witness observes that something frequently occurs; or b) by weight of examples. You need to be clear with the respondent about the nature of the evidence that is grounding the allegation, so that they have a fair opportunity to respond to the (qualitatively different) kinds of evidence.

Mistake 3: The "keeping your powder dry" allegation

It can be tempting to not reveal your thinking on an allegation "too early" because you are concerned that the evidence might change as the investigation progresses. For example, you might want to "keep things flexible" while you make your mind up about the evidence and precisely how the respondent has engaged in misconduct.

The problem with the "keeping your powder dry" allegation is that the case law is clear that your allegations must be "precise". This approach, therefore, runs a high risk of being found to be procedurally unfair because you have not disclosed all the critical issues on which your decision might turn.

The fix: To avoid this issue you should get your thinking clear from the outset and commit to the allegation. More evidence might be later obtained and, if need be, you can revise the allegation when the evidence changes. As Keynes allegedly said: “When my information changes, I alter my conclusions. What do you do, sir?”

Mistake 4: The "bare assertion" allegation

More often than I am comfortable with, I see allegations framed in terms of a set of facts followed simply by an assertion that the alleged conduct breaches a particular element of the Code of Conduct. It seems that the investigator is letting the facts do the talking, which is a superficially attractive approach.

The problem with the "bare assertion" allegation is that, sometimes, it can be obvious how the facts give rise to the allegation of misconduct. However, most of the time, some rationale or explanation is needed for the respondent to know why the conduct is said to constitute misconduct.

The fix: Plan your allegation by mapping out: a) the facts; b) the relevant rules, laws or policies that apply to the facts; and c) why you say the conduct constitutes misconduct by reference to how you move from the conduct to the non-compliance with the rules, laws or policies.

Mistake 5: The "missing piece of the puzzle" allegation

Finally, I see allegations that fail to outline key critical issues. For example, if you are alleging that a respondent acted for an improper purpose, you must state what you allege the improper purpose in fact was.

Another example is stating that the conduct breached a policy, but not stating which part of the policy was breached.

I see this kind of mistake when the investigate does not want to commit to a particular narrative as to why the conduct constitutes misconduct. Using the improper purpose example from above, what is usually happening in this situation is that the investigator is putting the available evidence to the respondent, with the view that the evidence supports the inference that the respondent has acted for a particular improper purpose.

The problem with the "missing piece of the puzzle" allegation is that, in reality, the investigator is (erroneously) conflating the obligation regarding the provision of the evidence with the obligation to put the respondent on notice of the critical issues. In many cases, the evidence might also support a range of other inferences about the purpose that motivated the respondent's conduct, some of which are not necessarily improper. Therefore, it is not clear what the investigator is in fact alleging.

The fix: To avoid this issue you should get your thinking clear from the outset and commit to the allegation. If need be, you can revise the allegation when the evidence changes.

To summarise

These 5 mistakes above are the most common mistakes that I have recently seen investigators make when drafting allegations. I see the issues stemming from a lack of conviction about the allegation, or a misguided belief that it is "ok" to make an allegation while not having a clear view about what is wrong with the conduct.

If investigators put themselves in the shoes of the respondent, they would see that allegations that contain these mistakes are unfair.

You should approach the drafting of allegations by "starting the way you mean to finish". That is, by having a clear idea about why the conduct alleged constitutes misconduct. Starting the way you mean to finish is a great guiding principle for drafting the allegations.