In 2016 the spotlight was on workplace investigations and the level of scrutiny required when conducting those investigations. In 2015 and early 2016, it appeared that the courts were becoming more pedantic and willing to scrutinise every aspect of a workplace investigation. However, employers will be somewhat relieved to know that by the end of 2016, this was changing.
In September 2016, the Court of Appeal (A Ltd v H  NZCA 419) overturned an Employment Court decision which had been very critical of an investigation. The Employment Court had found an investigation to be unfair because the witnesses were not as thoroughly questioned as the employee who was being investigated and some interviews were conducted in person, while others were conducted by phone. Further, some interviews were recorded and transcribed, while others were not.
The Court of Appeal had to determine whether the Employment Court’s approach in determining whether the employer had sufficiently investigated the allegations was correct. The Court of Appeal found that witnesses did not need to be questioned in the same way and with the same level of detail. The Court of Appeal overturned the Employment Court’s decision and found that an employer’s investigation should not
be subject to “minute and pedantic scrutiny”.
In another case, the Court reiterated that while it was important for the decision maker in an investigation to be able to approach the decision without any bias, the employer did not have to be independent in the same way as a judge would (Bhikoo v Stephen Matt Hair Design Newmarket Ltd  NZEmpC 75).
Despite the above, what is considered procedurally fair, will still depend on the circumstances of each case and an assessment of what a fair and reasonable employer could do. What is considered fair and reasonable will depend on the nature of the matter being investigated, the employer’s own disciplinary policies and procedures and any terms of the employee’s employment agreement. As a minimum, the following should be put in place:
- Ensure the investigation starts reasonably promptly after receiving the complaint;
- Inform the employee of the detail of the allegations against them as well as the seriousness of the allegations and the possible consequences;
- Advise the employee of their right to representation;
- Interview all the employees or other witnesses who were involved in the complaint or incident or who may have relevant information;
- After those interviews, the information gained from those interviews must be provided to the employee being investigated for their response;
- Provide the employee with a reasonable opportunity to be heard and to explain their conduct;
- Carefully consider the employee’s responses and make further enquiries if necessary;
- Ensure that the decision maker is able to approach the decision without any bias or predetermination.