Employment Law: 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.

Workplace 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, 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.

Many employment lawyers and HR consultants act as external investigators, carrying out workplace investigations. However, in a recent decision from the Private Security Personnel Licensing Authority, this work was found to be a breach of the Private Security Personnel and Private Investigators Act 2010, when it was being carried out by someone who was neither a practising lawyer nor a licensed private investigator.

What is the scope of an independent investigation?

Where the investigator is not the decision-maker, their role should be confined to making factual findings. An independent investigator should never make findings about whether the substantiated conduct amounts to misconduct or serious misconduct, or what the disciplinary outcome (if any) should be. These are matters for the decision-maker.

What are the alternatives to an investigation?

Where the employer has a choice about whether to conduct a formal investigation or not, and opts for an informal process, they are still required to show that they have addressed the concerns raised in the complaint and, if applicable, taken reasonably practicable steps to prevent the risk of harm.

In most cases, an informal process will include several different actions being packaged together to address the issues raised. These could include:

• training and development: for example, mentoring and coaching, training in management techniques or interpersonal skills, and 360 reviews for continued monitoring of behaviour

• mediation and facilitation between the parties: this may include an external or internal facilitator or mediator, the provision of an apology in some cases, and the parties (together with the employer) arriving at agreed protocols for future interactions

• resolving any disputes about work boundaries and responsibilities: sometimes bullying and harassment complaints arise from unclear boundaries between role responsibilities. A collaborative review of job descriptions and clear instructions could help in some circumstances.

Any informal intervention will likely require the cooperation and participation of both parties. Consultation with the parties is vital for proposing and implementing a plan that all parties can accept and that will enable the employer to show they have taken reasonably practicable steps to prevent any risk of harm.

A happy workforce comes with many added benefits for the employer, including increased productivity, reduced staff turnover and fewer legal claims. When conflicts arise, and complaints of bullying or harassment are made, managing them properly will be essential for maintaining a positive workplace culture.

Chloe Luscombe is a senior associate at Dundas Street Employment Lawyers. She advises employers and employees on handling complaints and carries out workplace investigations as an external investigator.

Jack Rainbow is a solicitor at Dundas Street Employment Lawyers and provides legal advice to a range of clients, including in relation to bullying and harassment.