Employment

Workplace Investigations – Ticking the right boxes for the Employment Court

February, 2021

By: Bev Edwards

Workplace investigations can be a difficult process and may occur at a time when the employment relationship between employees and/or the employer have deteriorated.

Any investigation is likely to involve a level of cost, time and risk, and the decision to conduct an in-house investigation or use an external contractor may depend on a number of key factors:

  • The nature and seriousness of the matter (including any sensitive matters)
  • The seniority of the employee
  • The degree of bias that may be perceived if the investigation were to be conducted internally 
  • The skill and experience within the employer’s business for conducting the level of investigation required 
  • The timing or urgency of the investigation, including whether the complaint has been raised during a peak period for the employer, or if there is a risk to health and safety and/or 
  • The extent of the resources (time and personnel) that would need to be dedicated to the investigation when compared with the costs of an external investigator.

In-house investigations

If an employer is conducting a workplace investigation in-house, the four key actions to follow are:

  1. Ensure all of the allegations are clearly set out to the employee
  2. Ensure all processes are conducted in compliance with any applicable organisational policies and that all parties involved are respected (which includes agreements as to confidentiality and non-victimisation) and have an opportunity to state their version of events
  3. Provide a comprehensive report of the steps you have taken, the findings you have made, and the recommended course of action
  4. Clearly identify all evidence in support of your conclusion.

Any deviation from these actions means that if you end up in Employment Court it may consider the process flawed and rule against you. In- house investigations could therefore save the initial cost of hiring an external investigator but could end up costing you a lot more if you get it wrong.

External investigators

As an external investigator with nearly 20 years-experience in both criminal and employment investigations, the one question I generally get asked after an investigation is ‘do you think they are telling the truth?’

My answer is ‘it doesn’t matter what I think’, and this is echoed in Ron McQuilter’s book BUSTED – Stories from New Zealand’s Leading Private Investigator.

The role of the external investigator is to remain independent and conduct a thorough investigation and whether that’s a criminal or employment law case, all lines of enquiry should be reviewed for evidence to either prove or disprove the allegation.

I am always mindful of the requirements that the Employment Court has set out as to what is expected in an investigation and in Goel-v-The-Director-General-for-Primary-Industries the approach has been praised as a good example.

You should also be aware that in June 2002, the Private Security Personnel Licencing Authority (PSPLA) ruled that those who carry out workplace investigations on behalf of an employer are required to hold a private investigator licence or be regulated under another Act. The PSPLA observed that workplace investigations are:

“a relatively recent feature…. parliament clearly intended the definition of private investigator to cover all people in the business of carrying out investigations into a person’s character, actions or behaviour. This is an integral part of an employment investigator’s work.”

To be clear, any external person conducting an employment-related investigation must now be certified as a ‘private investigator’, or hold an exemption to this requirement (i.e. qualified solicitors).

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Clear terms of reference

Until they are provided with the terms of reference, the investigator must have no prior knowledge of the incident under investigation. The terms of reference acts like a roadmap, clearly outlining all the details of the investigation and a plan for the entire process. The terms should

  • Clearly identify the matters being investigated, as well as any limits to the investigation
  • Outline who is conducting the investigation
  • Identify witnesses
  • Give timeframes
  • Make it clear that a support person for any party is entirely appropriate
  • Who the contact person is for the investigation.

The Process and Outcome

The Goel case set out the gold standard of process. The goal of natural justice was perfectly achieved and Judge A D FORD stated: “In many ways, the process followed by Mr Firman was a textbook example of how a disciplinary investigation should be carried out.”

Mr Firman consulted the employee under investigation at every step of the investigation. He included the employee in the formulation of his questions, getting ‘buy-in’ to the process. He ensured that the employee had a support person and that a full and complete record of every statement taken was verified. He completed a draft report which he provided to the employee for comments, before coming to his final Formal Investigation Report. His final conclusions indicated the specific behaviours from Mr Goel that did not align with the MPI Code of Conduct which all staff were expected to be familiar with.

The Employment Court commendation, that any investigator strives to achieve, was that – “the investigation process carried out into the misconduct allegations against Mr Goel was exemplary in every respect and cannot be faulted.

Fair and reasonable

Whether or not you choose to go in-house or use an external contractor, the Employment Court will use the litmus test of is this ‘what a fair and reasonable’ employer could have done.’ when looking at how the investigation was carried out and any decisions. Like suspending an employee.

Suspension is a serious step and alternatives should first be considered. The courts have also ruled that the individual concerned must be given a reasonable opportunity to make submissions about suspension before it is imposed.

Conclusion

Investigations in the workplace can have a substantial impact on the morale of your staff and culture of your business. Often investigations are not thorough enough, and issues are left unaddressed, or it can be overbearing, leaving people feeling they were unfairly treated.

Both scenarios can impact your productivity, staff retention and lead to litigation risks, ultimately damaging the reputation of your business.

In any investigation it is important to make sure your organisation is protected by ensuring your in-house investigators are trained regularly, or if necessary, an independent expert is appointed to support you, especially for more sensitive matters.

If you have any concerns around current or pending investigations, please contact EMA Legal or EMA Consultants.

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