New Zealand: Workplace Investigations: Best practices for employers in handling employee misconduct and complaints in NZ

Maintaining a healthy and productive workplace requires a commitment to addressing misconduct and complaints effectively. Workplace investigations play a pivotal role in fostering a positive work environment, ensuring fair treatment of all employees, and mitigating legal risks for employers. In New Zealand, employers must navigate specific regulations and practices when conducting investigations. This article discusses best practices for employers handling misconduct and complaints, outlining key steps and considerations throughout the investigation process.

Legislation

The Employment Relations Act 2000 and the Health and Safety at Work Act 2015 are critical pieces of legislation influencing how employers should approach workplace investigations. Additionally, compliance with the Privacy Act 2020 and other relevant laws is essential to protect employees' rights during investigations. Ensuring your business complies with the law is crucial when conducting a workplace investigation.

Establish a Clear Investigation Policy

The foundation for effective workplace investigations lies in having a well-defined investigation policy. Employers should establish a comprehensive investigation policy that outlines the procedures for handling misconduct and complaints. Some employers provide details of this within a Contract of Employment.

You should communicate this policy to all employees to ensure transparency and set expectations regarding the process. This could include the step-by-step process and whether certain actions amount to misconduct or serious misconduct.

Prompt Action

Employers should take prompt action to initiate an investigation upon receiving a complaint or becoming aware of potential misconduct. Timeliness is crucial to prevent further harm, ensure a fair resolution, and demonstrate a commitment to addressing workplace issues and solving personal grievances. Conducting any investigations promptly is essential, as witnesses may forget certain crucial aspects of the alleged incident.

Impartiality and Independence

Maintaining impartiality is vital throughout the investigation process. Designate an investigator who is neutral, unbiased, and has no personal stake in the outcome. In some cases, external investigators may be preferable to enhance objectivity and credibility, although this will come at an additional cost but will present any allegations of bias.

Confidentiality

Confidentiality is a cornerstone of successful workplace investigations. Employers must emphasise the importance of keeping the investigation details confidential to protect the privacy of all parties involved. This relates to the aspects of trust and confidence between employees and employers and minimises the risk of retaliation from any party involved.

Communicate Clearly

Transparent communication is essential at every stage of the investigation. Inform all relevant parties about the process, expected timelines, any reasons for delays and their roles in the investigation. Clear communication helps manage expectations and demonstrates a commitment to a fair and thorough inquiry.

Gather Relevant Evidence

The investigator must collect all relevant evidence to make informed decisions. This includes interviewing witnesses, reviewing documents, and obtaining any other pertinent information. Ensure that the evidence-gathering process is thorough, objective, and follows a systematic approach. It is also important that any interviews conducted verbally should also have a written record that the witness can verify after the interview.

Interviewing Techniques

Conducting effective interviews is a critical aspect of any workplace investigation. Interviewees should be allowed to provide their account of events in a safe and non-confrontational environment. Employers should ensure investigators use proper interviewing techniques to extract accurate information while respecting the rights of all parties involved.

Documentation

Maintain detailed documentation throughout the investigation. This includes notes from interviews, copies of relevant documents, and a record of the investigation process.

Well-documented investigations support fair decision-making and serve as a valuable resource in case of legal challenges. Ensure you record any verbal conversations in writing.

Fair Process and Natural Justice

Adhering to the principles of natural justice is imperative. Ensure that all parties involved have the opportunity to be heard, present evidence, and respond to allegations.

Closure and Follow-Up

Once the investigation is complete, communicate the outcomes to relevant parties. If disciplinary action is warranted, ensure that it aligns with the severity of the misconduct and follows the company's policies and procedures. Additionally, implement measures to prevent future occurrences and monitor the workplace for any signs of retaliation or further issues.

Key Takeaways

Conducting workplace investigations requires a strategic and attentive approach. Employers must be well-versed in the legal framework, establish clear policies, and follow best practices to ensure fair and effective investigations. By prioritising impartiality, confidentiality, and transparent communication, employers can create a workplace culture that promptly addresses misconduct and complaints and minimises legal risks. Ultimately, investing time and resources in conducting thorough investigations contributes to a safer and legally compliant work environment.