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Fact finding investigations can be tricky and difficult to master, but employers are expected to get both process and outcome right.  Examples of occasions when an employer is required to carry out a fact finding investigation (ie before any disciplinary investigation) include where there are conflicting accounts of an incident that has occurred, and where “he said, she said” complaints are made.  It is important to undertake an investigation that is substantively and procedurally fair to avoid a successful claim of unjustified disadvantage and/or dismissal.

In practical terms, a fair investigation process requires as a minimum:

Checking and following any rules contained in employment agreements and relevant policies on how investigations will be conducted, including timeframes for completion;
Advising affected employees (who are complained about, or who may be to blame for an incident) of what has been alleged, including that a formal disciplinary process may become necessary and what steps will be taken in investigating.  Further, that they can seek independent advice and bring support to any meeting held regarding the matter;
Putting in place appropriate protections for other employee implicated in the process (for example, separating complainant and the person complained about);
Speaking to relevant witnesses to get their accounts of events;
Providing all relevant information including those witness statements to the affected employee/s and providing an opportunity for their response;
Considering all relevant information in reaching factual findings as to what occurred;
Determining what next steps are necessary, for example, a disciplinary investigation process, and advising the affected employee/s of that.  You can read more about disciplinary investigations here
Employers should also consider whether it is appropriate to engage an external investigator, or whether there is the expertise and necessary independence within their organisation to conduct the investigation.  Depending on the circumstances of the allegations, the people involved and the nature and severity of the allegations, the investigation process may require more comprehensive steps and considerations than those outlined above.

In the recent case of Hayashi v Sky City [2018] NZEmpc 14, Mr Hayashi was reinstated to his position at Sky City Casino, compensated $25,000 and received lost wages due to the Court’s finding that the investigation process, “while having the trappings of a formally fair procedure, had underlying flaws” which were “serious defects”.  Had Sky City fairly conducted an initial fact finding investigation before starting a disciplinary investigation process and taking action against Mr Hayashi, this could have been avoided.  The Court criticised Sky City’s process because the grounds for Mr Hayashi’s dismissal was different than those initially raised, all relevant information was not supplied to Mr Hayashi before Sky City made its decision to dismiss him, there was an issue of bias and Mr Hayashi’s responses were not seriously considered by Sky City.

If you are involved in an investigation process, and need guidance, our team  can guide you through the necessary steps.

Disclaimer:  We remind you that while this article provides commentary on employment law topics, it should not be used as a substitute for legal or professional advice for specific situations.  Please seek guidance from your employment lawyer for any questions specific to your workplace.
August 2018