EMPLOYMENT LAW CHLOE LUSCOMBE AND JACK RAINBOW
Workplace investigations Managing a positive culture in the workplace is not always easy and can require careful management of conflicts between employees. Chloe Luscombe and Jack Rainbow, from Dundas Street Employment Lawyers, take a closer look at what to do when things get troublesome between colleagues.
W
orkplace investigations have become common when resolving conflicts, particularly where allegations of bullying or harassment have been made.
Do employers have to undertake a formal investigation?
Where an employee is dismissed or otherwise disciplined in connection with a complaint of bullying or harassment, the employer must investigate first. Section 103A(3) of the Employment Relations Act 2000 includes this express requirement, in order for any disciplinary action to be regarded as ‘justified’. Where an employer has received a complaint alleging sexual or racial harassment by another employee,
20
HUMAN RESOURCES
SPRING 2020
under section 117(3) of the Employment Relations Act 2000, the employer must inquire into the facts. In A v B and C (unreported, ERA, Auckland, AA 248/08, 14 July 2008, Urlich) the Employment Relations Authority had to consider a claim by an employee that she was constructively dismissed in circumstances where the employer had failed to fully and fairly investigate A’s complaint of sexual harassment. The Authority found that, while the employer did not have to believe the employee’s complaint of sexual harassment, they did have a duty to inquire into the facts of her complaint fairly and reasonably. The same is not necessarily the case for a bullying complaint, if disciplinary action is not being taken. The relevant employment agreements, and the employer’s policies, will be important in determining whether an investigation is required for a bullying complaint. In FGH v RST [2018] NZEmpC 60, the Employment Court found that the mere use of the term ‘bullying’ did not require the employer to start a bullying investigation under its Harassment Policy. Employers should look at precisely what is alleged and consider whether a bullying
investigation is the right approach, before getting started. Employers are required to take reasonably practicable steps to prevent the risk of harm to employees. In many cases where a bullying complaint is made, even where there is no policy or employment agreement requiring an investigation, this obligation will mean an employer should investigate. However, in some cases, the employer can meet its health and safety obligations in other ways too.
Who should be the investigator? The investigator could be the decision-maker, or someone else internal to the organisation, provided they are independent of the events giving rise to the complaint. However, bullying and harassment investigations can be complex and time-consuming, and many employers opt to seek external help.
When engaging externally, the employer is required to ensure that the investigator is appropriately qualified and experienced for the work. In Reti v Carter Holt Harvey (unreported, ERA, Auckland, AA479/05, 12 December 2005, Y S Oldfield), the employer paid the price for appointing someone who was not sufficiently skilled and experienced.
