Posted on: Apr 17, 2014

At times, we come across employee’s representatives who wish to conduct their own investigation into a misconduct matter, in parallel with the employer’s investigation.  This is in an attempt to assist the employee to adequately respond to allegations made against them.  Often, this may include the request to interview other employees and potentially customers, and results in both the employer and the representative being engaged in the same, but parallel process. Needless to say this makes things rather complicated!

It is our view that this approach is not appropriate, and makes a complete mess of the investigation process. The investigation process is for the employer to manage. This principle is conveyed by the Employment Relations Act 2000 and is further supported by case law.

In Colin McKellow and Transportation Auckland Corporation Limited, the Member said:[1]

[37] While a worker is entitled to know everything said about or against him or her and have the opportunity to respond to it, the principles of natural justice as interpreted and applied in our employment law do not generally entitle the worker (or his or her representative) to directly confront or question the complainant during the employer’s disciplinary inquiry (unless there is some contractual term which provides for such a procedure). Rather it is the employer who must conduct a full and fair inquiry into the allegation.

We note that the employment agreement and the employer’s policies should be used as guidance on this area in the first instance. It would be appropriate to allow a representative participation in a disciplinary investigation when the employer’s policies and procedures require such involvement, as in the case of AFFCO New Zealand Ltd v Nepia, where the Court said:[2]

[63]… it was bound by the code of conduct and the procedures in it which involved advising the union of the case against the individuals in order for the union to participate in the investigation procedure.

However, in the absence of a contractual requirement or policy, it is solely for the employer to conduct an investigation. Under the test of justification, the law explicitly states that the employer is to investigate the allegations against an employee. Section 103A (3)(a) of the Employment Relations Act 2000 establishes the notion that it is “the employer’s investigation”:

The Authority or the court must consider whether, having regard to the resources available to the employer, the employer sufficiently investigated the allegations against the employee before dismissing or taking action against the employee.

This principle is also well supported by case law, for example, as cited in Hiha v Crane Distribution NZ Ltd:[3] 

[34]…It is for the employer to investigate and determine whether the conduct is at a level it considers amounts to serious misconduct and then to decide the range of disciplinary responses.

And in Flight Attendants & Related Services (NZ) Association and Pacific Blue Employment & Crewing Ltd, where the Member said:[4]

[11] … Meetings conducted by an employer as part of a disciplinary investigation are not convened pursuant to a statutory right to “do anything or take any action” and do not fall within the meaning of section 236. How an employer undertakes such investigations is a matter for the employer. The employer’s conduct in this regard may be judged in hindsight by the Authority or the Court in terms of the employer’s obligation to act in good faith, any relevant provisions of the employee’s employment agreement, and in terms of the requirement in section 103A of the Act…

Further, an employee’s representative, by conducting their own investigation, creates a potentially unsafe workplace by subjecting complainants and witnesses to intimidating questioning and inappropriate interrogation. It is this sort of activity that creates barriers to employees’ raising sensitive issues in the first place, and is counter-productive to any investigation process.

We therefore recommend that employers prevent representative’s from conducting parallel investigations, and restrict their involvement to advising the employee of his or her rights, supporting the employee through the investigation process, and assisting the employee to appropriately respond to the allegations before them.

[1] Colin McKellow and Transportation Auckland Corporation Limited [2012] NZERA Auckland 191
[2] AFFCO New Zealand Ltd v Nepia BC200770718 WC 25/07 WRC 14/07, 28 September 2007
[3] Hiha v Crane Distribution NZ Ltd [2012] NZERA 351
[4] Flight Attendants & Related Services (NZ) Association and Pacific Blue Employment & Crewing Ltd ERA AA98/10, 4 March 2010

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This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.