Investigations are a difficult process and often come at a time when the employment relationship has deteriorated between employees or between an employer and an employee. Any investigation process is also likely to incur a certain level of cost, time and risk. The decision whether to do it in-house or contract an external investigator will depend on:
• 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 investigation If an employer is conducting a workplace investigation, then four key actions are to: 1. ensure all of the allegations are clearly set out to the employee; 2. all processes are conducted in compliance with any applicable organisational policies and ensure all parties involved are respected (which includes agreements as to confidentiality and not victimising others) 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 whether the allegation is made out or not and provide evidence in support of a conclusion.
External investigator The real cost, though, will be if you get it wrong. With nearly 20 years experience in conducting both criminal and employment investigations, I can guarantee that after conducting an investigation, I will be asked "Do you think they are telling the truth?" As the latest blockbuster private investigator book BUSTED! (Stories from New Zealand’s Leading Private Investigator- Ron McQuilter 2021) says - it doesn't matter what I think. My role is to remain independent and conduct a thorough investigation. Whether it’s a criminal or employment law case, all lines of enquiry should be reviewed for evidence to either prove or disprove the allegation. In all investigation cases, I am mindful of the requirements that the Employment Court has set out as to what is expected in an investigation. In June 2020, the Private Security Personnel Licensing 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. So back to the start: you have identified a qualified investigator – what check list did that Employment Court case set out? The litmus test for this is ‘what a fair and reasonable’ employer could have done.”
Suspension? The decision to suspension is not for the investigator to make. Suspension is a serious step and alternatives to suspension should be considered. The courts have ruled that the individual concerned must be given a reasonable opportunity to make submissions about suspension before it is imposed. Terms of reference Until provided with the terms of reference, the investigator must have no prior knowledge of the incident. The terms of reference is the roadmap to clearly outline all the details of the investigation and should ultimately be 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; and • who the contact person is for the investigation. The Process and Outcome The Goel case above set out the gold standard of process. The goal of natural justice was perfectly achieved and Judge A D FORD stated that: “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.” Conclusion Investigations in the workplace can have a substantial impact on the morale of your business. Often the investigation is not thorough enough and issues are left unaddressed, or it can be overbearing and people feel unfairly treated. Both of these scenarios can impact your productivity, staff retention, can lead to litigation risk and ultimately could damage your business reputation. Make sure your organisation is protecting itself by ensuring that your in-house investigators are trained regularly or if necessary, appoint an independent expert to support you, especially for more sensitive matters. If any of this concerns you, and you feel you need help, please contact me. If nothing else I hope this post makes you think about reviewing what you currently do – after all it’s a new year and a good time to reset for the year ahead.
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