From time to time during an employment relationship, issues may arise that an employer needs to better understand. Employment relationships in New Zealand are underpinned by the mutual requirement for the employer and employee to act in good faith. What does that mean? It means that both parties are required to be active and constructive in maintaining a productive employment relationship (including active communication) and not to do anything that would mislead or deceive the other, or that is likely to have that effect.
Employers therefore may commence an investigation for any number of employment issues that may arise – these may be minor, and able to be managed with little enquiry (ensuring a fair and reasonable process is followed), right through to serious issues, including allegations of bullying and harassment.
How employment investigations are managed is likely to come down to a number of factors for an employer including the size of the organisation and resources available to them. There is no requirement for an employer to seek an external investigator to perform the 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 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.
Where an employer decides that the nature and seriousness of the allegations (including bullying and harassment) requires that an external party is appointed to investigate, the external party must be a Licensed Private Investigator, or Lawyer who holds a current Practising Certificate. While visions of Velma and the team solving Scooby-Doo type mysteries may come to mind, the reason for this requirement is that both Licenced Private Investigators and Lawyers are regulated and bound by professional obligations. Both are subject to their own complaints process, providing protection to those who engage them. Therefore, choosing an external investigator is important – are they qualified? Do they have capacity to perform the investigation in a timely manner? How will they conduct the investigation? How will they report on the investigation? Are there any tricky process issues to iron out? Are they able to perform an impartial investigation? While Velma and the team always manage to get to the bottom of the mysteries they are tasked with solving – there’s no doubt their methods are unorthodox, and best left in the 1980s!
Employment investigations may result in disciplinary action being taken against an employee (up to and including termination of employment), so a skilled investigator needs to work carefully through all the information obtained through the investigation to come to findings of fact. A skilled investigator will be able to make 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 (right through to Executive and Board level).
Where matters may reach a criminal standard, these are appropriately dealt with by the Police. That said, criminal allegations do not preclude an employer from making its own enquiries into matters and making decisions in respect of employment relationships. A word of caution though, any employment investigation must meet the test of justification set out in the Employment Relations Act and be fair and reasonable in all the circumstances. Where it is found by the Employment Relations Authority/Employment Court that the employer has failed to act fairly and reasonably in good faith, significant remedies have been awarded to the employee.
There have been a number of public reviews/investigations into alleged conduct of employees and culture within organisations. Many of these reviews relate to the cultures of bullying/harassment and/or sexual harassment. Notable organisations who have had extensive reviews undertaken are FENZ, CAA, Mediaworks and the Law Society’s review of legal workplaces. In each case, findings were made of inappropriate conduct and pervasive cultures of bullying/harassment including in some cases, sexual harassment/misconduct. All have publicly committed to improve those cultures, including addressing misconduct and inequality (in respect of terms and conditions of employment, including pay) towards women. It is devastating that in the 2020s employment issues of this type are still being ‘uncovered’ and only starting to be addressed. It has been a long, slow road to reach this place and I am grateful for the advocacy being done by a number of high-profile women in this space, including Alison Mau’s work in the #metoo movement. Unfortunately, you do not have to look too far to unearth similar stories in many women’s work history.
Conducting these kinds of investigations takes time, skill, empathy and perseverance.