Flexible workplace investigations

Anna Jackman, Senior Associate at DTI Lawyers, looks at how much adjustment an employer can or should make during a workplace investigation and whether flexibility in processes can lead to better outcomes for employers and employees alike.

Any workplace investigation requires a full and fair process, anchored to both the good faith requirements and the test of justification set out in the Employment Relations Act 2000. That is, whether the employer’s actions and how the employer acted were what a fair and reasonable employer could have done in all the circumstances at the time. That creates significant leeway in terms of how an employer conducts an investigation, provided it does not do anything to mislead or deceive, or anything that is likely to have that effect and that it gives the employee all information relevant to the concerns it is to investigate.

Policy considerations

While the legislation is the starting point to anchor any workplace investigation, the first port of call

for ensuring the investigation is undertaken fully and fairly is the employment agreement between the parties and any relevant policy. Now is a good time to check on your policies. A good policy will allow for flexibility of process for the employer while still maintaining clarity for employees as to what to expect during a workplace investigation. A policy that ties an employer up in strict process requirements may be particularly unhelpful in times of economic uncertainty.

Poorly conducted investigations may end up being a costly exercise for the employer in either reinvestigating matters or in defending claims raised against it.

Flexibility

Assuming the employer’s policy does not prescribe who is required to investigate (such as an external investigator), or strict procedural guidelines that must be followed, it is open to the employer to set its own process with respect to workplace investigations. This can provide flexibility to undertake an investigation internally, provided there are no issues of impartiality, or to appoint an external investigator.

It also allows for an employeecentric approach to the investigation, including guidance from the employee as to where and how they would like to be interviewed (some may have a preference for face-toface, while others will be comfortable with an online platform).

Options for workplace investigations

In the current economic climate, bringing in an external investigator may not be an option the employer wishes to take. An internal investigation may be more suitable and cost-effective, particularly where it is vital to ongoing relationships and dispute resolution processes. In Goel v The Director General for Primary Industries, the Court noted that it may satisfy an employer’s obligations of fairness by requiring the (internal) investigation to be undertaken by an employee from a different part of the business, with no prior knowledge of or relationship to the facts in the investigation.

Now is a good time to check on your policies.

Irrespective of whether the investigation is internal or external, the investigator must have the capacity, skill and experience to undertake a full and fair investigation. Keeping the investigation in-house with the assistance of an external investigator is another option for employers to consider in challenging economic times.

If the employer is to rely on the findings of the investigation (whether external or internal) for a subsequent disciplinary process, then it is imperative that the investigation is undertaken fairly and competently.

A poorly conducted investigation may end up being a costly exercise for the employer in either reinvestigating matters or in defending claims raised against it. It can also create dissatisfaction for employees involved in the investigation, and potential claims against the employer as a result.

Keeping the investigation in-house with the assistance of an external investigator is another option for employers to consider in challenging economic times.

Summary

Having a flexible policy will help ensure that, as an employer, you can tailor the investigation to your requirements, provided the investigation process, whether undertaken internally or externally, is undertaken in good faith and in accordance with the test of justification.

Anna Jackman is a Senior Associate at DTI Lawyers. Anna is a specialist employment lawyer and workplace investigator (AWI-CH). Alongside providing employment law advice and representation and performing workplace investigations, Anna regularly provides training and commentary on workplace investigations. Email anna@dtilawyers.co.nz for further information.