- Tim Clarke, Partner, Bell Gully
ELM: We understand that there are often a lot of considerations that go into whether an employer commences an investigation, or takes an informal intervention in response to a workplace issue. For the latter, what do you recommend an employer does to properly manage this situation, and possibly avoid the time and resources required to commence an investigation?
TIM: One of the threshold issues is to consider whether an investigation is necessary. For instance, the facts may be so clear that it would not serve any useful purpose to interview witnesses, collect documents or make further enquiries before commencing a formal disciplinary process (e.g. where the employee has made an admission, or there is good CCTV evidence). However, if the company’s policy requires an investigation, an employer must follow the requirements strictly so that the process is not unfair – so ideally an employer would have some flexibility in its policy in deciding whether to start an investigation.
ELM: Tim, a common question regarding workplace investigations from our readers and the HR community in general is “when exactly is a workplace investigation required?”. When asked this, what is your typical response and why?
TIM: This is always a question of fact. An investigation is required when an employer does not have sufficient facts and materials so as to put the allegations and evidence to an employee in a fair way. An investigation is almost always required where the matter is complex, and typically an investigation is required where there are allegations of a sensitive nature, such as allegations involving senior management, bullying or sexual harassment.
ELM: “Conducting workplace investigations” is the topic you are covering at the upcoming event in Auckland. What will be your top three takeaways for delegates listening to your presentation on how to ensure their workplace investigation is conducted in a fair manner?
TIM: Investigations can be complex and raise a number of legal issues, and therefore it can be difficult to get the procedure right. My top three takeaways would be:
(a) to take the time to run the process properly;
(b) keep an open mind by exploring the facts fully and genuinely considering the employee’s explanation;
(c) consider taking advice or engaging an external investigator if you’re insufficiently resourced or equipped to run a proper investigation.
ELM: As a Partner at Bell Gully, and listed as one of the top employment lawyers in New Zealand, you’ve obviously had a lot of professional experience in employment law matters over time, not to mention know of some great case examples that have taken place. In your opinion, what are a few trending issues you are seeing in the market at the moment?
TIM: There have been a number of recent cases which have suggested that the courts are more willing to closely scrutinise the employer’s process and decision. There have also been some suggestions that employers are required to adopt a process akin to a judicial standard and that investigators need to act like trained litigators conducting a cross-examination.
About Tim Clarke:
Tim is an experienced litigator specialising in employment, health and safety and privacy law. He is committed to resolving clients’ issues and disputes in a pragmatic and commercially-focused way. He is Partner for Bell Gully in Auckland.
Tim provides expert advice on all aspects of employment law including disciplinary and personal grievance hearings, restraints of trade and the protection of goodwill and confidential information, restructuring and redundancy proposals, exit packages, employment law implications arising on the sale or transfer of all or part of a business, all aspects of relationships between employers and unions, and Privacy Act and Human Rights Act issues.
Tim will be doing a one hour presentation at the upcoming HR Law Masterclass in New Zealand, where he will further discuss the topics outlined in this interview. His colleague Dianny Wahyudhi will be representing Bell Gully in Wellington.