Beware the unlicensed workplace investigator

Where an employee has made a complaint about workplace conduct, employers are obliged to investigate and respond to the complaint in good faith.

A good faith response to the complaint will involve the employer:

  • Sufficiently investigating the concerns
  • Raising the concerns with the employee involved before taking actions
  • Giving the employee a reasonable opportunity to respond
  • Considering the employee’s response in relation to any potential disciplinary action

When considering the form an investigation is to take, it is important to assess the nature of the complaint made and the resources at the disposal of the business. There is no one-size-fits-all approach to workplace investigations.

For example, it is expected that an investigation conducted by a small business would be less elaborate than that conducted by a large business with a People & Culture (Human Resources) department and ample resources.

In looking at the nature of the complaint, an important preliminary decision to be made is whether to appoint an external independent investigator.

Despite the extensive use of external investigations in the past decade, it is important to note that employers are not required to seek the assistance of an external investigator.

An external independent investigator is more likely to be required where:

  • The complaint made is serious, or sensitive in nature (such as, sexual harassment)
  • The complaint is made about a senior executive
  • The complaint is factually complex, or there may be issues of credibility requiring the expertise in conducting the investigation process
  • The complaint relates to an organisation-wide issue

If it is decided that engaging the services of an independent investigator is necessary, it is important that the employer establishes that the investigator has the necessary qualifications and is licensed.

In June 2020, the Private Security Personnel Licensing Authority (PSPL Authority) in Re: De, E and C Ltd [2020] NZPSLA 007 issued a decision which clarified that those hired to act as independent employment investigators are acting as private investigators under section 5 of the Private Security Personnel and Private Investigators Act 2010 (PSPPI Act). Accordingly, external workplace investigators must either be:

  • Licenced under the PSPPI Act, or
  • A lawyer holding a practicing certificate from the New Zealand Law Society.

In internal investigations conducted by in-house People and Culture (HR) employees, People and Culture are acting on behalf of the employer and are therefore not regarded as independent investigators covered by the PSPPI Act.

On 4 April 2022, the PSPL Authority in LS & LAS Ltd [2022] NZPSPLA 011 issued a decision on the same issue.

In that case, the employee made a bullying complaint to her employer against members of her team. The employer’s employer hired LS (of LAS Limited) to investigate the complaint. LS was not licenced under the PSPPI Act and was not a lawyer holding a practicing certificate.

The PSPL Authority held that LS and LAS were in breach of the PSPPI Act, although it was accepted that the breach was inadvertent.

In terms of the implications for employers, the PSPL Authority does not have jurisdiction to deal with complaints made about unlicensed investigators, or the outcome of those investigations. However, the use of a non-compliant workplace investigator does put employers at risk of the employee bringing a personal grievance—particularly if the work of the unregistered investigator is relied upon in any decisions made by the employer.

To reduce such risk, employers should ensure that any investigator they intend to use are appropriately qualified and licenced. To see if the investigator has a Private Investigator licence—employers can check the Public Register.

If you require assistance with a workplace investigation, please don’t hesitate to be in touch with our Employment Law team. We have lawyers who specialise in conducting independent external investigations. We can also guide and support businesses through an internal investigation process or advise individuals who are the subject of the investigation.

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