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Do you need to conduct an Employment Investigation?

From time to time an employer must undertake an investigation after either receiving a complaint from an employee about another employee, from a complaint by a client or customer or member of the public about an employee or the employer themselves have noticed or witnessed certain behaviour which they believe is a breach of an employee’s duties to their employment contract.

In any of these circumstances an employer is under an obligation to undertake a fair and thorough investigation.

Too many employers fail to undertake that task correctly.

Many leave themselves exposed to accusations that they were biased, that they did not undertake an investigation at all, that the investigation was procedurally unfair, or simply was not thorough enough or that they ignored important evidence.

Workplace investigations are becoming more and more of a specialised field and there are now full time practitioners undertaking workplace investigations throughout New Zealand.  Some are more qualified than others.

Many New Zealand Workplace Investigators now hold a Certificate from the AWI Institute of America which is run by the Association of Workplace Investigators.

Of course, engaging an independent Workplace Investigator involves a cost.

If you do not wish to undertake that cost, then you have a duty to undertake the investigation yourself.

It is important that you follow the correct procedures and it is recommended that you take legal advice before commencing an investigation to ensure that you undertake it and conduct it in a transparent and fair manner.

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This is to protect both you and the employee being investigated.

An investigation might involve assessing the complaint, planning how the employer should react to that complaint,  planning an investigation, taking written statements from witnesses or any other relevant parties involved, and collecting physical evidence.

Eventually, as part of an investigation, you are going to have to interview the person who is the subject of the complaint.

They are entitled to received certain information that you have collected as part of the investigation to ensure that they have a fair and reasonable opportunity to respond to any allegations being put to them.

Failure to conduct any of the interviews in a fair manner will jeopardise the investigation and potentially leave the employer exposed to a personal grievance claim.

The standard of proof for an employment investigation is the civil standard which is on the balance of probabilities or put another way, they would have to determine whether it is more likely or not that the behaviour alleged actually occurred.

To get to the point of whether a matter is more likely to have occurred or not is sometimes referred to by Investigators as balancing the facts and if they are relatively even the difference may simply be a feather.

This is significantly different from the criminal standard of proof which is beyond reasonable doubt which does not come into civil standards of proof.

Get the right advice from the start! Contact us today

Before you undertake an investigation, we recommend that you take legal advice first. Contact Collins & May Law for assistance.