From time to time during an employment relationship, issues may require an investigation into alleged conduct.
How employment investigations are managed, is likely to come down to factors including the size of the organisation and resources available to it. There is no requirement for an employer to seek an external investigator to perform an employment investigation (subject to any policy requirements an employer has), if the organisation has someone who has the ability and capacity to perform the investigation, and provided there are no legitimate questions in respect of impartiality. This means that for many employment issues, investigations are performed by the organisation’s HR team, sometimes with the assistance of an external employment lawyer or representative to guide the process.
Choosing an external investigator is important, as any findings the investigator makes may ultimately be challenged through to the Employment Relations Authority and beyond. Some questions to ask are:
- Are they qualified?
- Do they have capacity to perform the investigation in a timely manner?
- Have they undertaken these kinds of investigations previously?
- How will they conduct the investigation?
- How will they report on the investigation?
- Are there any tricky process issues to iron out?
- Conducting these workplace investigations takes time, skill, perseverance, and empathy.
As employment investigations may result in disciplinary action being taken against an employee (up to and including termination of employment), a skilled investigator needs to elicit all relevant information, then work carefully through all the information obtained through the investigation to come to reasoned findings of fact. A skilled investigator will be able to make legally defensible findings of fact on whether alleged conduct occurred or not, even in the scenario where it is “he said/she said” and there are no witnesses to that alleged conduct. It is imperative that the investigator has the skills to analyse conflicting accounts, assess whose version of events is more credible, and clearly and concisely report on those findings, so that stakeholders are able to review and understand those findings.
The recent case of Quinton-Boundy v Waimakari District Council [2022] NZERA 616 highlighted the importance of undertaking a fair and reasonable process with respect to allegations of bullying. In this case, the employee raised concerns regarding the behaviour of her Manager and her Executive Assistant, and ultimately resigned claiming unjustified dismissal on the basis that the organisation had breached its duty to provide a safe workplace. The organisation argued that the bullying by the other employees was not foreseeable, that it had treated the issues as a ‘conflict of interest’ and ‘managerial issue’ in terms of the Manager potentially favouring the Executive Assistant, and that the employee had not ‘formally’ raised her concerns. This was not accepted by the Authority Member, who considered that the organisation was aware of previous incidents in respect of the Manager and Executive Assistant, including the undermining of the organisation’s HR team, and that a complaint had been made by the subject employee to the Chief Executive – the informality of the complaint being irrelevant. Also noted by the Authority Member was the honest and frank evidence of the organisation’s witnesses, including for similar incidents, and that four witnesses who gave evidence broke down while being questioned, some 18 months since their experiences they were still feeling the emotional and psychological impact of that time. Significant remedies were awarded.
This case is a good reminder for employers that:
- When you become aware of a complaint/concern, there is an obligation to deal with it, irrespective of whether it is raised formally or informally. In this case, the Authority noted that an independent investigation was required, and the organisation knew that, but did not take those steps.
- Even where it is known that an employee will be leaving the organisation soon, an employer has an obligation to act.
- An employer must manage risks, including psychological risk, where risk of harm is foreseeable. An employer must take proportionate steps considering that risk.
- There is an intersection between employment obligations and health and safety obligations. Both must be considered and managed.
If in doubt, seek advice. Early intervention and investigation, in particular in the circumstances where there was previous indication of this behaviour, investigation is imperative. In these circumstances (where there is bullying/undermining alleged by two employees in different levels of the organisation against others), an independent investigation is recommended to ensure impartiality and robustness of reporting. DTI Lawyers can assist with workplace investigations. Both Andrea Twaddle, Director and Anna Jackman, Senior Associate undertake independent investigations, and both hold the globally recognised best practice AWI Certificate in Workplace Investigations.
You can contact us on 07 282 0174 or anna@dtilawyers.co.nz / andrea@dtilawyers.co.nz
