If an employee has breached their obligations under an employment agreement or they have not followed reasonable instructions or rules at work, their employer should be familiar with how to conduct a fair investigation before taking disciplinary action.
The law in New Zealand requires employers to have reasonable grounds before taking disciplinary action against an employee. The employer must also follow a fair process before taking disciplinary action, including a fair investigation:
Assess the situation
The employer must first assess the situation to determine if there is a genuine need for an investigation. If the issue is not serious, you may simply decide to talk to the employee and remind them of expectations (for instance to arrive on time). If the allegations are serious or could have a significant impact on the workplace, then an investigation is usually necessary.
Inform the employee of the allegations
The employer must inform the employee of the allegations against them and provide them with copies of any relevant material (like witness statements, surveillance footage, emails, documents, etc.). The employer must do this within a reasonable time of the alleged incident.
Put interim measures in place if necessary
It may be necessary to take interim measures while an investigation is being undertaken (for instance to suspend or offer discretionary leave to an employee). Suspension may be appropriate if there are ongoing health and safety concerns or to protect the integrity of an investigation. An employer must have grounds to suspend an employee and they must follow a fair process in coming to that decision. An employer should inform the employee they are considering suspension, and allow them give feedback first.
Give the employee an opportunity to respond
The employee must be given a reasonable opportunity to respond to the allegations. They may include accepting the allegation, denying it (and providing their own evidence or witnesses), or proving an explanation that changes how the allegation is viewed. An employee should be told they have the right to legal advice and representation when they respond. They may also rely on support from a support person.
Investigate the allegations thoroughly
The employer, if they can be neutral and objective, must investigate the allegations thoroughly and impartially. This may involve interviewing witnesses, reviewing documents, or conducting other inquiries. If the allegations are serious or complex they are likely to attract more legal risk and an independent investigator could be a appointed instead. An independent investigator could also be appointed to free up internal resources, or to deal with a conflict of interest.
New evidence
Any new evidence gathered during an investigation should be copied to the affected employee for their comment.
Consider all of the evidence
The employer must consider all of the evidence before making a decision. This includes the employee’s response to the allegations, as well as any other relevant evidence. The employer must consider evidence with an open mind, and not have a predetermined outcome in mind.
Make a reasonable decision
The employers decision should be reasonable, when viewed from the perspective of a bystander knowing the facts. The decision should be consistent with the employer’s disciplinary policy and procedures, as well as the law. Employees should also be treated similarly, if they have similar circumstances.
Here are some additional tips to keep in mind during an investigation:
- Keep the investigation confidential to the extent possible.
- Document the investigation process and findings.
- Conduct the investigation promptly and without unreasonable delays.
- Look into new lines of enquiry that are relevant (for instance someone mentions a witness you did not know about).
- Be mindful of your own biases to avoid an unfair outcome.
If you feel unsure or overwhelmed by the prospect of conducting an investigation on your own, consider appointing an independent external investigator. An independent investigator can free up resources and ensure the process complies with the law so you do not end up with more a costly personal grievance to resolve.
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