How employers can minimise risk using independent, bias-free workplace investigations
This article is sponsored by Parry Field Lawyers.
Much like a criminal investigation, when an employment matter is raised in a workplace, every case is different – and the approach to solving each matter will be different too.
Understanding when it’s best to have an independent investigation or just have one of your own team ask a few questions can make all the difference to the outcome and speed of resolution.
As a former police detective, Mike Henderson-Rauter at Parry Field Lawyers knows this well.
He says that in almost every case, the starting point should be to get some advice on first steps.
“Trust and confidence in the investigation process is the cornerstone for the police,” Mike says. “It’s also key for employers, who will need to manage perception of fairness not only by the parties involved but the wider team, and potentially other external stakeholders.”
Awarded for commitment and professionalism
Mike says that his work with the New Zealand Police was both rewarding and challenging.
As a detective, he investigated serious incidents including homicides, other sudden deaths, and cases of sexual assault. He worked exclusively on larger investigations, including the Christchurch terror attacks of 2019.
This year he received a Commissioner’s Bronze merit award for leadership, professionalism and commitment to duty for his role as an investigator and preparing the case for prosecution, as part of a larger team.
“During my 7 years with the police I was able to really develop my skills in critical thinking, information gathering and problem solving,” Mike says. “All of these are important now in my work as an employment lawyer, particularly when carrying out independent investigations.”
Mike says that typically, investigations will be necessary when an employer receives a complaint or has concerns about bullying, sexual harassment, or other misconduct.
Calling in independent assistance may be the wisest course of action for several reasons, including the nature and volume of allegations made, or who any the allegations are made against.
Employers often won’t have the time or expertise to investigate to the level that might be required, or to provide a line of sight to all potential legal risks in any course of action.
What to expect
Once an independent investigation starts, terms of reference will usually be drafted as a first step.
“This might seem a formal process, but these are important as they provide a ‘road map’ for any investigation,” Mike says
“They'll set out things like how the investigation is to be approached, scope of the enquiries, how interviews will be held and timeframes.”
The investigator would then meet the complainant, respondents or any other witnesses to interview them and understand the key relevant information. A written report would then be drawn up with findings and recommendations to provide confidence in the next steps.
One other valuable aspect of an investigator’s role during employment investigations is to guard against accusations of bias.
“Because we are independent, we can provide objectivity, which sometimes just isn’t possible with internal investigations,” Mike says.
“Investigators can also offer expertise in some of the more specialised areas of employment law, such as bullying, harassment and sexual harassment.”
If you try to manage employment investigations internally, you may be asking people to do this on top of their day job. By using employment law specialists, you will benefit not only from their investigator, but also their entire support team.