The critical importance of constructive engagement when investigating potential misconduct in the workplace.
A recent landmark case Gumbeze v The Chief Executive of Oranga Tamariki emphasises the importance of procedural fairness in employment investigations extending to consulting about terms of reference and the importance of neutrality of decision makers.
The case highlights the challenges for employers under the Employment Relations Act 2000 for personal grievances and constructive engagement when investigating potential misconduct in the workplace.
The case is a cautionary tale for employers initiating and utilising external investigations.
The decision highlighted several deficiencies in the process rendering the outcomes (dismissal) based on it unjustified. It awarded $79,015 in lost wages and $35K compensation for hurt, humiliation, loss of dignity and injury to feelings.
The Employment Court judgment delivered in July 2024 provides a detailed account of the procedural aspects necessary for a fair employment law process.
Within the last decade workplace investigations have become a lucrative industry for independent investigators, who are often lawyers.
The industry itself has developed a rather stylised, expensive and cumbersome layer to the employment relations infrastructure not necessarily aligned with the statutory regime of good faith and constructive engagement.
The Gumbeze case adds a significant contribution to the evolving and dynamic employment law landscape and legal jurisprudence.
It reinforces the legal framework governing the employment relationship.
It gives clear insight into procedural fairness often lost in the investigation maze.
It extends the procedural fairness beyond the investigation itself.
Employers are required to give an employee the terms of reference for the investigation. The Court found the failure to provide him with the term of reference (well after the investigation had commenced) was not consistent with the duty of good faith and shaped how he responded.
That duty in my view would extend to a duty to consult concerning the terms of reference.
The terms of reference are important; they drive and shape not only the response, but also the inquiry itself. All too often in my experience the terms of reference are manipulated constructively to influence the focus of the investigator and direct the investigation to a pre-ordained outcome.
More often what is omitted is more important than what is included to achieve fairness and balance.
It requires a decision maker to step aside from making a decision into an employee’s conduct due to any previous involvement.
The Court said that although unconscious there was an element of predetermination in the decision to dismiss. That although the employer Oranga Tamariki decided to use an independent investigator it subsequently gave no attention to the resources available to it as required by Section 103A to assess whether the decision maker ought to step aside as the decision maker due to prior involvement in the matter. The Court said that due to prior involvement by the decision maker the independence potentially gained by using an external investigation was lost.
All too often there is little if any separation between the investigation and the decision maker. Further, the internal Human Resources too often provides an influential continuity between the complainants, the organisation and the investigations which also offends section 103A of the Act.
It implicitly sanctions a right of an employee not to participate in an unreasonable and unfair process.
The Court also criticised the conflation of a preliminary decision letter which practically read as a draft letter of termination. The Court found the employee was denied the opportunity to persuade the employer to adopt a less onerous outcome. The Court found that the preliminary decision letter could be criticised because instead of providing Mr Gumbeze with an opportunity to respond to a possible decision still being formed, the letter articulated such strong and concluded views that it reads as a draft dismissal letter which barring something extraordinary and unexpected coming forward indicated what the result was to be.
These types of letters have become all too frequent in my experience.
Some tips for successful and constructive investigations are:
Put in place a good, inclusive, neutral and responsive reporting system: Without a clear process for making complaints and handling them, investigations can become disorganised. It’s essential to have a system in place for reporting, assigning, and tracking cases.
Unfair escalation: Without a fair triage involving all parties’, investigations may be baseless, costly and prejudicial.
Prompt action: Procrastination can exacerbate issues and increase the likelihood of legal complications. Prompt investigation is necessary once a complaint is made. Acknowledge complaints quickly and plan to complete investigations within a reasonable timeframe to ensure the best evidence is collected.
Proper and secure evidence handling: Secure and preserve evidence properly to prevent tampering or destruction or improper use. Follow company policies strictly during this phase.
Choose the right investigator: The investigator should be neutral unbiased and truly independent (not a referral from a pre-ordained preferred associated pool). If HR is not suited for the task, consider appointing someone else, possibly from outside the organisation who understands the importance of the statutory regime of good faith engagement and natural justice concepts.
Effective communication: Keep all parties informed throughout the process, especially if an employee involved in the investigation is on leave.
Don’t neglect complaints: Take all complaints seriously, even if they are anonymous, as they can still indicate serious issues within the workplace.
Look for potential bias in investigation: Avoid any real or perceived bias. The investigator should not have a personal or professional relationship with any of the parties involved including the organisation’s legal advisors. They should be persons who engender trust and confidence in the method of approach and enquiry. Too often leading questions give appearances of bias and predetermination which detract from trust and confidence in the process. The investigation should elucidate not regurgitate. The investigation should confine itself to fact finding and not speculate. The investigation ought to test credibility and collusion. The investigation should apply the standard of proof according to the seriousness of the matters being investigated not just rely glibly on the balance of probabilities.
Adequate Interview Techniques: Ensure interviews are conducted fairly and that witnesses are comfortable to cooperate without fear of retaliation. Leading questions and putting words in interviewees mouths are a no no.
Respect Employee Confidentiality: Handle sensitive information with care to maintain confidentiality and trust.
See the process through don’t conclude too early: Don’t form early theories or conclusions before all evidence is in. Seek evidence impartially and consider all aspects before making a decision.
Ensure separation of investigator and decision maker. Although not always feasible, ensuring the decision maker is a different individual from the investigator/finder of fact can avoid perceptions and issues of bias and concerns about the decision maker’s ability to keep an open mind. The Court Gumbeze placed emphasis on the fact Oranga Tamariki was a large well-resourced employer in being critical about the decision maker not recusing themselves from the process. Furthermore, consider appointing a different decision maker, particularly if a decision maker has had any prior involved in relation to the issues.
By being aware of these pitfalls and actively working to avoid them, organisations can conduct more effective and fair workplace investigations.
Investigations are an art not a science. Empathy and emotional intelligence are important.
If you are an employer in need of a fair, impartial, and robust investigation process, don’t hesitate to contact Buckettlaw as this is a service we offer. Similarly, if you are an employee involved, or needing to be involved in an investigation, Buckettlaw can provide you with advice, guidance and representation about the process as well as your rights and responsibilities in relation to it.
