PSPLA
PSPLA clarifies Private investigator confusion A recent PSPLA decision clarifies what the ‘private’ in ‘private investigator’ means, writes Nicholas Dynon, concluding that employment investigators are required to be PSPLA licensed but that lawyers are not.
A decision from the Private Security Personnel Licensing Authority (PSPLA) in June 2020 concluded that a company investigating a case of workplace misconduct had breached the Private Security Personnel and Private Investigators Act 2010 because its investigators were not appropriately licensed during their investigation. Despite this finding, the company avoided prosecution due to the PSPLA concluding that “any breach was inadvertent and a result of the widespread belief within the employment investigation industry that they were not private investigators.” The decision ([2020] NZPSLA 007) also noted that the company’s employees had subsequently obtained practicing certificates as lawyers, which exempted them under the Act from having to be licensed as private investigators. Complaint and CIPU finding A complaint was lodged in July 2019 against the company relating to the way it had carried out a workplace investigation for the complainant’s previous employer. The complaint alleged that two individuals were providing private investigation services through the company without
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the necessary certificate or licence. The complaint led to an investigation by the Complaints, Investigation and Prosecution Unit (CIPU), which found that the company’s investigators should have held licenses/certificates and that as holders of practicing certificates as lawyers they were not exempt. Disagreeing with the finding, the company sought a review, arguing that it is not the intention of the Act for employment consultants and investigators to fit within the definition of a private investigator, and that “even if they were required to hold a licence at the time they carried out the investigation, they should now be exempted by s 22(d) as they hold practicing certificates as lawyers.” In the subsequent PSPLA review, clarifications were provided in relation to misconceptions relating to the role of private investigators vis a vis employment investigators, and in relation to whether or not practicing lawyers are required to hold private security licenses/certificates of Approval. Private Investigators and Employment Investigators According to the PSPLA, the company had submitted that when the Act was passed in 2010, “Parliament’s main concern was to
ensure private security personnel and investigators did not get out of hand and to deter cowboy operators,” and that “the Act was directed at private investigators in the sense in which that role is commonly understood, namely covert investigations and surveillance of targets.” The PSPLA accepted that parliament may not specifically have had employment investigators in mind when considering the work of private investigators when the Act was passed, but that it had “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.” In its decision, the PSPLA noted that the company specialises in independent investigations into workplace complaints, and provided a brief description about what’s involved. “They are contracted to carry out investigations on behalf of an employer where there are allegations of misconduct, either by one employee against another or by an employee against a manager. Most allegations relate to bullying, sexual harassment or other inappropriate behaviour in the workplace but can also relate to allegations of fraud or theft. “When such allegations are made an employer is legally required to
April/May 2021
