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Investigating any serious allegations against one of your employees is never an easy or straightforward process. Unfortunately, you may have no choice but to consider an investigation if there are allegations of misconduct, bullying or harassment against one of your staff. In these situations, you must exercise your good faith duty to your employee to run a fair and reasonable disciplinary investigation process.

Running an investigation is often a complex process and can change drastically depending on the circumstances. It is best practice to engage an employment lawyer if you think your business will need to conduct an investigation. However, this article will set out a general overview of the process.

Preparation for a Disciplinary Investigation

When responding to allegations against one of your employees’ conduct, you may consider conducting a disciplinary investigation. Suppose you feel that there is a serious issue to be investigated. In that case, the right thing to do is inform the relevant employee and advise them that you will investigate their conduct. However, in some situations, such as where an employee can destroy information, or threaten others, you may want to discreetly resolve these matters before talking to the employee.  

Other vital parts to preparing for an investigation include checking the employee’s employment agreement and any business policies relevant to disciplinary investigations and the employee’s conduct. 

Likewise, you must decide who should carry out the investigation. A common misconception is that you must engage an independent investigator who is not affiliated with your business. While this may be a good option depending on the circumstances, it is not a requirement. Instead, you can use a neutral person in the business to conduct the investigation and gather facts objectively. They should not be close to the employee under investigation or any complainants. 

Furthermore, you should plan the investigation and draft the terms of reference, which set out how the investigation will proceed. You should give these draft terms of reference to any complainants and any employees under investigation, so they can give feedback before you finalise the plan.

Carrying Out the Investigation

How you choose to carry out the investigation will inevitably depend on the circumstances. Some investigations may be quick and simply involve talking to a few employees. However, others may be very time-intensive and involve many different kinds of information or evidence to analyse. Most investigations will involve interviewing witnesses. When deciding to conduct a disciplinary investigation, you should note:

  • the investigator should interview people who saw the alleged behaviour or act, or who have direct knowledge of it; 
  • you should inform witnesses that the information they provide will remain confidential to the investigation, but that the employee under investigation will be given the summary of meeting notes which may identify them;
  • usually, witnesses cannot be anonymous, as this prevents the employee under investigation from their opportunity to respond to what the witness says. However, in some cases, it may be acceptable for the witness to be anonymous. You should get expert advice if this is the case for your business;
  • the person being interviewed should be clear on the purpose of the interview and what the information will be used for; and
  • the investigator should take notes throughout the interview. The investigator should confirm these notes with the employee to ensure it was an accurate record of the interview. These notes should then be provided to the employee under investigation so that they can comment on them.

The Investigation Report

The investigator should conclude the investigation by drafting an investigation report, which they should provide to you (as the employer). There are principles around how to complete an investigation, particularly around decision-making. Notably, the investigator should not decide what the disciplinary action should be for the employee. Instead, their role is to summarise the facts and make findings. It is then the decision-maker’s job (whether you or another senior employee) to consider what action to take. 

The investigation report should:

  • be a careful, balanced assessment of what has been learned from the investigation, including whether any allegation is more likely than not to be true;
  • address each issue raised in the investigation;
  • be objective, without any emotional or moral judgements;
  • have a clear link or reference from the evidence to the findings; and
  • be provided to the employee for comment (and possibly the complainant as well) before being finalised.

Key Takeaways

Conducting a disciplinary investigation can be complicated, but it is an important process to get right. Having a fair process includes having a clear and objective investigation where the employee receives a chance to comment on the allegations. Employees should also have a say as to how you conduct the investigation, and the specific information witnesses put to the investigator. The investigator should wrap up their investigation with an investigation report that makes findings of fact, but that does not recommend any specific disciplinary action. It is best practice to seek specific legal advice if your business needs to carry out an investigation.

If you have any questions about carrying out investigations in New Zealand, contact LegalVision’s employment lawyers on 0800 005 570 or complete the form on this page.

FAQs

When does a business need to do an investigation?

Usually, when allegations have been made against an employee, and you are considering any disciplinary steps. Before taking disciplinary action, investigations are often required to ascertain what happened.

Does an investigation have to be carried out by someone outside the business?

No, it does not. However, the investigator should be objective, neutral and balanced.

Can witnesses in an investigation be anonymous?

Usually, witnesses should not be anonymous, as this prevents the employee under investigation from commenting on the witness’ information. However, in some rare circumstances, it may be appropriate for witnesses to remain anonymous.

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