3. Fair Investigation – The due process standard for a “fair investigation” is that it be thorough and unbiased. A thorough investigation includes interviews of the accuser, the accused and particularly those who witnessed the alleged misconduct.
Many arbitrators are reluctant to uphold discipline imposed without the benefit of evidence that could be provided by first-hand witnesses.
One arbitrator found a “grave procedural error” in the employer’s failure to preserve and produce a video tape of a bus driver’s conduct, where the employee promptly had requested the tape’s retrieval.
A full and fair investigation contemplates that the employer will evaluate the evidence for content, consistency and credibility. Evidence of bias often can be found in the employer’s approach to the investigation.
An investigation was found to be impermissibly biased where the employer had asked witnesses questions that were leading or suggesting disapproval of the accused.
Generally, where the investigation process suggests that the employer is marshaling the facts to support a predetermined result, it will be found to violate due process.
4. Timely Employer Action – When an employer becomes aware of alleged misconduct, due process requires the employer to investigate and take action within a reasonable time.