Whether it’s allegations of misconduct, bullying, or health and safety, conducting fair and proper workplace investigation is crucial – and failing to do so can be costly.
Most employers will inevitably face situations that require an investigation into an employee’s behaviour. Where the situation is serious enough to warrant an external investigation, the employer cannot blindly rely on the investigator’s findings and must conduct their own review of the report before deciding on an appropriate response.
Below, we have outlined a high-level overview of the investigation process and an employer’s obligations following an investigation. It is important to note that investigations are not one-size-fits-all and what is appropriate will depend on the circumstances.
If you need assistance navigating an investigation and/or disciplinary process, please do not hesitate to contact our experienced Employment Law team.
Overview – investigation process
If preliminary enquiries show that – on the face of it – the allegations appear to possibly have substance:
- Inform the accused of the allegations against them.
- Draft and issue the terms of reference – this will clarify the scope of the investigation.
- Decide on the investigator – some circumstances may call for engagement of an external investigator, for example where the investigation involves complex issues or where there is risk of a conflict of interest.
- Conduct interviews – the complainant and other witnesses should be interviewed first. The respondent should be provided with all the information before they are asked to give a response.
- Draft the investigation report – this should address each of the allegations and determine whether each can be substantiated on a balance of probabilities.
- Obtain feedback on the draft report from the respondent and potentially the complainant before it is finalised.
- Finalise the report and give to the decision-maker.
Obligations of the decision-maker
While an investigation report will help provide the facts as to what did or did not occur, it is ultimately the employer’s responsibility to determine what an appropriate response is.
The Employment Relations Authority decision in JSC v Landcorp Farming Limited (T/A Pamu),[1] highlights that employers need to consider the information in the investigation report and draw their own conclusions.
In that case, the decision-maker took numerous steps before adopting the investigator’s findings that led the Court to determine that it was a reasonable decision.
Those steps included reviewing the investigation report more than once, reading transcripts from the interviews and clarifying the employer’s policies with HR.
The decision-maker determined he was comfortable with the external investigator’s findings including that the complainant’s credibility was tested.
[1] [2024] NZERA 162.
