Investigations; Q & A

May 1, 2023
Q & A, Health & Wellbeing

What are your options for conducting a workplace investigation? Here is a short Q & A to test your knowledge on how to approach these scenarios.

I have received a complaint from an employee in response to another employee laying a complaint against them. I am the most senior person in the business and get on well with the initial complainant but think I could conduct the investigation without bias. What are the risks?

When a complaint is investigated and one party’s behaviour is found to be less than ideal, it is seldom that individual self reflects, accepts their behaviour was not okay and takes steps to remedy the situation. It does happen, but not often. It is far more likely you will get considerable push back and one defence mechanism is to criticize the investigation process, including the investigator. Even if there is genuinely no bias in the investigation, it is the perception that is important. An investigation that is deemed to be biased, if a personal grievance is an outcome, adds risk to the possibility of losing the personal grievance.

I have received a sexual harassment complaint. It really is nothing, I think the guy was either just joking or it didn’t happen quite as the complainant remembers. She is sensitive at the best of times and it was a small incident. I have spoken to him before about something similar but he is a really good guy and critical to the business. Do I really have to “investigate” this?

Yes, an investigation is highly recommended and should be conducted by someone outside of the organisation. The description of the complaint clearly demonstrates a predetermined outcome which puts the organisation at risk of a successful personal grievance. A ‘joke’ for one person (particularly when they have been previously spoken to) is highly likely to be deemed sexual harassment if that is the way it was received by the person on the receiving end. Whether or not a behaviour is sexual harassment is not determined by the ‘sensitivity’ of the victim.

If we use an external investigator do they have to be a licensed Private Investigator?

Yes they do, unless they are a lawyer with a current practicing certificate. This requirement was clarified in 2020 with a decision of the Private Security Personnel Licensing Authority in relation to the case of D, E & C Limited [2020] NZPSLA007. All the Consultants at Chapman Employment Relations are licensed Private Investigators.

A key witness in the investigation (they are an employee), is refusing to give a statement. Can I make them?

An employee is required to obey a reasonable and lawful instruction. Giving a statement is a reasonable and lawful instruction. Therefore if they refuse to, they could be subject to disciplinary action.

The person being investigated is demanding all the documentation I have collected, including statements that people have given in confidence. Do I have to give everything to them?

If you are relying on the information to reach a decision, then the person is entitled to see it so they can respond. Statements given in confidence are of no use to the investigation and statements given on this proviso should not be taken.

If we use an external investigator do they decide what actions need to be taken once the investigation is completed?

No. The decision on what actions are to be taken should always be the employer’s to make.

Please call one of our Consultants if you would like further guidance on workplace investigations.