Employment Investigations


One of the vexing questions facing business owners today, when an employee’s behaviour is in question, is who should investigate the concerns?

Small businesses do not have the HR resources of larger organisations and often the reporting line is a direct relationship between the business owner and their staff. This can open a business owner up to challenges of bias or, if they are not familiar with employment processes, allegations of failing to follow due process.

Overcoming Bias

One of the ways is to engage an independent third party to undertake the investigation. Businesses may turn to their legal advisers to do this. However, that too may create some difficulties. While you might naturally think of cost, the biggest implication may come down to your lawyer being compromised by being both your adviser as well as your investigator. While there is a degree of separation, and your relationship with your lawyer is subject to legal privilege, this can still leave you open to questions of just how impartial was the investigation.

Having an independent investigator can solve these problems. However, it is important that you select someone who is experienced, knows what they are doing, and how to conduct the investigation in fair and just manner. Also, not all issues in the workplace will require a full-blown investigation. The types of issues that are likely to require a full investigation are instances of bullying and/or harassment in the workplace or where there are other serious misconduct allegations raised.

Under the Health and Safety at Work Act 2015, employers must provide a safe work environment for their staff and visitors. Workplace bullying and harassment is therefore seen as a health and safety issue and you must take complaints seriously.

Initial Response

When you receive a complaint, take it seriously and act promptly. The wrong response would be to discount it as someone letting off steam or having a moan.

Ensure that you support both parties – the person making the complaint (the complainant) and the person the complaint is about (the respondent). You need to ensure that both complainant and respondent are protected from reprisals and/or victimisation.

It is important that when you get a complaint, you acknowledge this with the complainant and then ensure that they provide you with sufficient detail to enable you to frame the complaint so that the respondent knows what they have allegedly done and can respond.

This means complainants must provide precise information – what actually happened? Who did/said what? When date and time did the incident happen? Who else was present / witnessed the incident?

If you don’t have this level of detail, then the complaint is too broad to investigate.

Identify an investigator

To ensure there is no bias for or against any of the parties, select an impartial investigator and provide them with some clear terms of reference for the investigation. The investigators role is to be a “fact finder” not a decision maker. As part of your terms of reference you will also need to set out an indication of time frames for the investigation, who the investigator should talk to and any other information to which the investigator should have access, and to who the investigator will report their findings.

Anonymity

It is rare that anyone participating in the investigation should be afforded anonymity. The respondent is entitled to know who is raising the complaint against them so that they can place the event in their minds and prepare an appropriate response.

This also means that any information that the investigator is provided during their investigation must be disclosed to the respondent, not just that which is being relied upon for findings.

Interviewing

This is one of the most important parts of your investigation process. It is through interviewing that the investigator draws out relevant facts to help them determine what has or hasn’t happened. The key to a successful interview is the use of open questions, and not leading the interviewee. Also, important in this phase of the investigation is the taking of careful notes of the interview and what the interviewee says. It is important that you record everything that is said and not be selective in what is recorded.

A common mistake made during interviews is making decisions based on the demeanour of the interviewee. It is important to not read too much into how the interviewee presents themselves. They will be nervous. They may have difficulty in recalling events. This is only natural and it would be dangerous to draw any inferences from a person’s demeanour during the interview.

If a person doesn’t wish to be interviewed and instead they provide a written statement, then that should be acceptable. However, if the written statement raises questions, then these should be followed up to ensure completeness of the process.

Conflicting Evidence

Often conflicting or even “new” evidence arises during an interview. It is important that where this occurs there is follow-up. New information should be put back to whomever needs to respond to that new information. Where information conflicts, put the conflicting information back to the appropriate person for them to comment. If you are not able to resolve conflicting information, then generally you should give the respondent the benefit of the doubt. However, the investigator may also prefer one person’s evidence over another’s. Where this is the case, they need to explain why in their report.

Investigation Report

That leads us to the investigation report. The investigator should set out their findings in a written report. Essentially the investigator must decide on whether the allegations have been substantiated. Their report should set out an overview of their investigation process, including their terms of reference, who was involved in the process, what other information was obtained (whether it was considered relevant or not), an analysis of the information obtained, conclusions and reasons for their decision. The findings in the report need to be findings of fact.

Before the report is finalised, the respondent must be given an opportunity to comment on the draft. Depending on the terms of reference, the complainant and employer may also be given an opportunity to comment on the draft.

Once the investigator has considered all the comments, they finalise their report and provide this to the decision maker.

It is important that the report does not contain recommendations on any disciplinary action. That is a matter for the decision maker. The report needs to focus on whether what has been alleged to have happened did in fact happen.

Once the decision maker has received the report, if they accept the findings, and the findings substantiate the allegation, then they must initiate a separate disciplinary process.

McKone Consultancy is experienced in undertaking employment investigations. We have undertaken investigations for clients in Nelson, Wellington, Tauranga, and Auckland. We can undertake a truly independent, bias free, investigation anywhere in New Zealand. If you have a need for assistance with an employment investigation, do not hesitate to contact us for a free no-obligations chat about your situation.

#McKoneConsultancy #EmploymentInvestigations

© 2020 by McKone Consultancy Limited

Lower Hutt, New Zealand