The Coalition Government recently announced a proposal to enhance clarity when determining whether someone is a contractor or an employee. 

The principle of providing certainty to employers, employees, and independent contractors as to how they are classified and the implications arising from their status is sound.

However, what we have seen to date appears too light on detail for such parties to be able to draw firm conclusions and alleviate status anxiety.

The proposed “gateway test” has four requirements: 

  1. There must be a written contract stating the person is a contractor.
  2. The business must not restrict the worker from working for other companies, including competitors.
  3. The business must not require the worker to be available at specific times or for a minimum number of hours or it must allow them to subcontract their work.
  4. The contract must not be liable to be terminated if the worker declines additional tasks beyond the existing agreement.

The scope for unfair treatment Is a source of concern 

While further detail will emerge in time, the gateway test as it stands has the potential for unintended consequences. 

Just as there are opportunistic employees, there are also less scrupulous employers who may use such an approach to avoid the costs of actual employment and exploit workers who have less knowledge about their employment rights. 

The potential for unfair treatment in this area is concerning, especially given the number of examples we already have of other forms of workplace exploitation, amid limited resourcing at MBIE to effectively enforce compliance with legislation.

As with most areas of workplace legislation, the devil and the angels are in the details. The hope is that the proposed legislation will crystalise the intent of these changes to provide clarity and support innovative ways of working, without giving unintended licence to those less scrupulous who seek to take advantage of others for their own benefit.

If you would like advice on ensuring your organisation’s employment policies are in line with current legislation, or HR support around employment agreements, please get in touch.

Despite recent glimmers of positivity in the economy, it remains vital to resolve workplace conflict in a timely manner, for the well-being of the parties and the organisation itself.

Senior Associate Lisa McWilliams-Smith outlines the key steps before, during, and after mediation.

The mediation process remains the primary problem-resolution mechanism under the Employment Relations Act. 

Mediation has the unique twin benefits of confidentiality along with ‘off the record’ discussions (also called ‘without prejudice’ discussions).* 

After conducting hundreds of mediations each year at MBIE, my observation is that it is a rare situation where parties do not gain a greater understanding of the situation, the other party, themselves and the business or organisation. 

Mediation allows the parties to hit ‘pause’ on the dispute in a neutral context, then with a skilled facilitator, tailor an appropriate process, providing the best chance of a satisfactory outcome.

Preparation

Before coming to mediation, we think it is important to be clear about several things.

For example: ‘My manager is bullying me’, ‘my employee is taking too much sick leave and is always on TikTok when they do show up’, ‘two of my key staff members are constantly bickering’.

Common interests include productivity, good working conditions and saving costs.

Interests are the needs, hopes and desires behind the problem. 

Problems and positions usually only have one solution, whereas there may be a raft of solutions to resolve the parties’ interests. 

Note: it is counterproductive where one party is in the dark about why they have been invited to mediation. In these circumstances, the lack of clarity about the purpose for mediation may be seen as an ambush when the reason is tabled. In such circumstances, any resolution may be delayed and the relationship between the parties is very likely to be damaged.

At Mediation

After Mediation

*Anything specifically and only discussed at mediation may not later be used at the Employment Relations Authority, the Employment Court or any other jurisdiction. 

Our mediators are experienced in helping to resolve a broad range of disputes and conflicts in the workplace. For more information around our mediation services, please get in touch.

Conflict in the workplace can arise from misunderstandings, differing opinions, stress, or other interpersonal dynamics both inside and outside the workplace. Effective de-escalation techniques can prevent these conflicts from growing into more serious issues. 

Senior Associate Campbell Gourlay outlines key strategies and skills to de-escalate conflict within the workplace.

—

And I’ve been putting out fire

With gasoline – David Bowie 

When was the last time that you told someone to “just calm down”, and like magic, the person immediately stopped whatever behaviour caused you to tell them to calm down in the first place?

If my own personal experience in the home environment with my domestic general manager and genetic offspring (who incidentally exhibits scarily similar behaviours to myself) is reflected elsewhere, then not often if ever would be the resounding answer to that question.

So how in the work environment do you de-escalate or manage conflict without the equivalent of throwing petrol on a fire?

Understand the headspace you are in

First rule of thumb would be to take a deep breath and check in with yourself – are you in the right head space to deal with conflict? Because that will dictate what happens next. If you’re not in the right frame of mind it’s less likely you will be able to objectively respond and the potential to ignite the issue is high.

So, if you are not in the right head space, then create some space. That might be as simple as getting the people who are in conflict separated to pause whatever discussion, or argument is underway with an undertaking to talk to both groups or parties to gain an understanding of the issue or the cause of conflict.   

Understand the source of the conflict

So what is the issue? What is the source of the conflict? Identifying this is key to addressing how you approach de-escalation. 

To do this you will need to dig a bit deeper. What is it you may have observed or witnessed or has been reported to you? To establish the issue you will need to ask questions and listen to understand. Keeping an open mind and a neutral mindset, channel your inner Switzerland but without the chocolates and watches. 

Listed below are some key strategies and skills to use when you approach a conflict and attempt to de-escalate within the workplace. The individual or specifics of a situation may dictate the order you apply some of these strategies, but for my money number one is the key.

  1. Staying calm and composed (importantly ensure you are in the right head space to do this)
  2. Active listening 
  3. Clear and respectful communication
  4. Empathy and validation, when appropriate 
  5. Setting boundaries, what is appropriate and what is not 
  6. Problem-solving approach
  7. Seek external support
  8. Healthy and unhealthy conflict

Healthy and unhealthy conflict

It should be noted that some conflict within the workplace is healthy and allows people to challenge the status quo to sense test ideas. This usually occurs in a high trust environment or within a workplace culture where it is understood that challenging an idea or a process is not personal and does not diminish or minimise an individual’s value or identity in doing so.  

However, conflict outside of conditions inevitably impacts on organisational culture, individual and team productivity, attraction and retention of the best people.

Knowing when to seek an independent mediator

Sometimes it takes an external person to intervene and facilitate a way to resolve a conflict. This can happen if it has been a long standing unresolved issue, also when the people trying to de-escalate and resolve are not seen as impartial for some reason by the people in conflict.

If that is the case for you, get in touch with our dispute resolution team who have been dealing with conflict since Angus from ACDC was in short pants.  

There are key considerations to be reconciled when contemplating exit negotiations, whether under the current provisions of the Act or those contemplated by the Employment Relations (Termination of Employment by Agreement) Amendment Bill.

Senior Associate Lisa McWilliams-Smith writes about the proposed changes, requirements of the current legislation, and what employers and employees should consider when faced with exit negotiations.

Member’s Bill ‘Termination of Employment by Agreement’

To refresh your memory; the Policy behind the Bill is to allow an employer to initiate ‘protected negotiations’ without risk that the employee will bring any PG against the employer (as a consequence of the employer’s exit proposal or indeed any other cause of action).

Should the bill be passed into law, the employer would be able to propose dismissal to an employee, by requesting the employee to sign a settlement agreement for specified compensation, in return for the employee waiving their entitlement to raise any PG; ultimately by mutual consent.

An agreement made under subsection (1) of the Bill will only be enforceable if the  employer has advised the employee to seek independent advice about the exit proposal and the employer has given the employee a reasonable opportunity to obtain independent advice before signing.

Further, negotiations leading up to the proposal to terminate would be inadmissible in any proceeding before the Authority, unless the communication was compiled with a dishonest purpose or to plan or commit an offence.

Conducting exit negotiations now

In the meantime, exit negotiations will only be ‘off the record’ if they are clearly understood by both parties to be in a ‘without prejudice’ context, for example, during a confidential mediation.

At mediation (private or held at MBIE) the parties and the mediator are bound by strict conditions of confidentiality. That means nothing that is said may be used in evidence or relied upon elsewhere. The ‘cloak of confidentiality’, the neutral context and the insights of the mediator allow the parties to get to the heart of the problem between them without fear that what they say can be used against them elsewhere.

Leading up to mediation, careful thought will need to be given to how to approach an exit. Hard positions or strong feelings once voiced cannot be unsaid and may be counterproductive to the parties parting ways in a dignified, reasonable fashion.

Pre-mediation with your lawyer or representative and the mediator is the perfect time to plan the substance of your half of the mediated exit conversation, i.e. the possibility of an exit, why, when, how and the possible inclusion of specific terms and conditions.

Opening up an exit negotiation outside of mediation may be perilous for the employer, given the inherent inequality of bargaining power, the mutual obligation to maintain a productive employment relationship and the real risk of claimed employment disadvantage if the employee is surprised by the employer’s proposal and not inclined to leave.

If discontinuation of employment is contemplated, the best practice approach in the current context includes meeting the requirements of natural justice, good faith and the current legislative provisions set out at s103A of the Employment Relations Act 2000.

Employers, and employees, may want to consider seeking advice and support at an early stage if they wish to open up delicate exit negotiations in a strategic, measured fashion towards the best outcome for all.

The decision around whether to investigate a workplace complaint can be difficult for employers. Employment Law Specialist and Barrister James Crichton outlines what employers should be considering in their assessment around whether to undertake an investigation.

Employers frequently get into a stew about whether they should investigate a complaint, or not. It can be a bit of a balancing act.

The first port of call has to be your company policies. Does it say you are obligated to investigate a complaint from within your own staff? If yes, that answers your question of whether to investigate or not.

But typically, in our experience, most employers don‘t have such requirements in their policy. So how do you judge it?

For instance, is it just a staff member “sounding off” or venting? How do you tell if it is this or a serious concern? Ask yourself if the issue being raised is serious or trivial. Sometimes this is not straight forward. If it is trivial, you can probably put it aside. If it is serious you need to ask yourself whether you are now on notice of something happening in your workplace that is undesirable, if it is true. You will need to do a robust preliminary assessment to satisfy yourself that you know which category your issue falls into.

Having got evidence of an undesirable happening in your workplace, what happens if you do nothing? A staff member could lodge a personal grievance against you, or worse still, a number of staff might independently lodge grievances. Or a staff member might refer the matter to Worksafe and allege their workplace is unsafe. Neither outcome is desirable, when there are proper alternatives available to you.

Remember that just because someone says something has happened does not make it true. It is only an allegation until you have satisfied yourself that it is reasonably likely to have happened.

What is critical, once you have made your preliminary assessment, and assuming you have decided it is a serious allegation, is that you then investigate the truth or otherwise of the allegation.

Some employers wrongly leap straight to a solution to the problem without deciding if there is truth in the allegation, or not. In our experience, some employers will seek to mediate between staff as a way of addressing the complaint but that is doomed to failure by definition, if you do not already have a view about what actually happened.

It is also common for employers to say that the complaint is just a “he said-she said” kind of thing and so there is no chance of ever finding out just what had happened. For the record, we regularly deal with investigations for clients in this category and we are experienced at determining the most likely explanation of what happened.

And sometimes, complaints will be presented to you in “in confidence”. Sadly, such a complaint is no complaint at all. This is because in our law, every person complained about is entitled to confront their accuser. So an investigation cannot proceed without a complaint that “goes on the record”. If required, our team would be able to suggest an alternative process where there is no formal complaint.

Frequently, employers think they cannot afford an investigation by an external expert but these enquiries do not necessarily cost a fortune.

Whatever the cost, it is imperative that if the allegation made is judged to be serious, there needs to be an enquiry to establish the facts. That is all an investigation typically does. If you don’t know what happened, how can you deal with it? And dealing with it before you know the facts is doomed to failure as well, as I note above.

In a one-of-a kind ERA decision (June 2024), the Authority found that the Bank of New Zealand had unjustifiably terminated the employment of a whistleblower and breached good faith as the employee was subject to retaliation as a result.

The case is significant as it highlights that protected disclosures should not be treated just like any normal complaint and the correct policies and procedures must be applied.

What is a Protected Disclosure?

Protected Disclosures are made by individuals, under the protection of legislation, when an individual has concerns that there has been serious wrongdoing in or by the discloser’s organisation. This is sometimes known as whistleblowing.

This Act applies to both public and private sectors and one of its main functions is to ensure that workers are protected when they report concerns and can be free from any type of retaliation by employers.

The BNZ Whistleblower case

While the facts of this case occurred under the previous Protected Disclosures Act 2000, it is relevant to the application of the current Protected Disclosures (Protection of Whistleblowers) Act 2022.

The Applicant, Ms Bowen, was employed by BNZ from September 2015 as a Manager of the Acquisition Specialists team. During her employment she raised a complaint (“First Complaint”) about the conduct of one of her employees in her team and the Head Manager of the Small Business Unit.

BNZ investigated the complaint and, not long after, the Head Manager (who was the subject of Ms Bowen’s First Complaint) developed a restructure proposal which had the effect of disestablishing Ms Bowen’s role.

When the proposal was presented to Ms Bowen, another protected disclosure was made (“Second Complaint”). This disclosure formed part of the personal grievance raised (although it was later found that it was not successful as it was raised out of the 90-day PG timeframe).

It was found that the Head Manager had not only designed a structural change without any logical commercial basis, but the Head Manager had also deliberately closed the opportunity for Ms Bowen to be considered for the newly created role that the seconded person had been confirmed into. This was found to be in retaliation for the First Complaint.

The Authority also criticised BNZ for their handling of the protected disclosures and found that the organisation’s policies were confusing and flawed. The treatment of Ms Bowen’s First Complaint was found to be a breach of the NAB Whistleblower Policy that BNZ had in place because they did not treat it as a protected disclosure nor protected her from retaliation.

In summary, BNZ was found to have acted in an unjustified manner towards Ms Bowen through retaliation from the Head Manager for the First Complaint, which caused disadvantage. BNZ had breached good faith, as Ms Bowen had suffered retaliation and the restructure caused Ms Bowen to be unjustifiably dismissed.

What do employers need to know about Protected Disclosures?

The main takeaways from this case are that organisations should understand the difference between a normal compliant and a protected disclosure and ensure that this difference is clear in policies.

BNZ were criticised as the primary document for their employees was the Code of Conduct and this had no reference to the separate Whistleblower Policy which applied, which was not found to be clear to any employee who would be looking to make a complaint that falls within Whistleblowing territory.

A way employers could distinguish between a normal complaint vs a whistleblowing complaint is by identifying whether the complaint falls into the category of “serious wrongdoing” which is:

Put simply, company policies need to be structured on the basis that employees can quickly distinguish between a normal complaint and one attracting the additional protection of a Whistleblowing complaint and can therefore make a choice one way or the other.

Further, this case demonstrates that retaliation will not be tolerated. Employers should therefore take care to ensure that best practice is applied and the procedures are followed while the protected disclosure is being investigated.

Organisations could seek to mitigate any risk of retaliation  by appointing an independent investigator to conduct the enquiries, which would reduce any risk that internal players could misuse findings or information.

Either way, organisations must communicate clear expectations with those who are party to a protected disclosure about their obligation of confidentiality and privacy, to dis-incentivise them from using positions of power or information in a way that may be seen a retaliation.

If you would like to ensure your employment policies are fit for purpose in this area, or require information around independent workplace investigations, please get in touch.

 

The employment jurisdiction has traditionally been known for being modest in terms of awards made to successful individuals, specifically those seeking compensation for hurt and humiliation suffered. However, this perception is increasingly changing with awards being paid far in excess of what has been awarded previously.

In this article, James Crichton and Madeline Wrigley summarise the changes in the compensation model used by the Employment Relations Authority and Courts, and the impacts this is likely to have on the expectations of employees and employers when it comes to settling employment disputes.

Introduction of bands to guide compensation in employment disputes

Compensation is a remedy under section 123(c) of the Employment Relations Act 2000 (ERA2000) for hurt and humiliation caused by dismissal or unjustified action. Previously, when reaching a conclusion based on the appropriate compensation amount under the ERA2000, Authority Members and Judges would make an award based on the facts which are particular and materially relevant. This led to a wide range of awards, and in 2016 – 2017 the average award for hurt and humiliation suffered was $7,173.76. 

However, Chief Judge of the Employment Court, Christina Inglis, saw the assessment of compensation as “an inexact science” and urged the jurisdiction to consider taking a new approach which was introduced in the Human Rights Review Tribunal in the case Hammond v Credit Union Baywide (2015). In that case, the Tribunal outlined three bands of compensation for humiliation, loss of dignity and injury to the feelings of the applicant during an employment relationship. 

Chief Judge Inglis utilised this banding approach in the employment court via the case Waikato District Health Board v Archibald (2017), again stating that assessing compensation causes difficulties in terms of ensuring a degree of consistency across like cases while reflecting the individual circumstances of the particular case before the Court. 

The advantage of banding was seen to be that it would support informed settlements and predictability in awards, and provide a transparent appellate platform to those who wished to utilise it. 

Trends in compensation for employment disputes

Bands are now commonly used across the Authority and Court, and adjusted based on inflation levels by applying the Reserve Bank’s inflation calculator to the previous bands (notably in the GF v Comptroller of the NZ Customs Service (2023) case). The current bands are:

Between 2017-2021 we have seen a trend where compensation mainly falls within the first two bands (Band 1 and Band 2). Examples of compensation awarded are $8,000 for “low level” stress versus $30,000, for feeling immediate physical impacts of nausea, anxiety, depression and feelings of being “exploited, hopeless and frightened”. 

However, the Employment Relations Authority Annual Report 2023 statistics show that compensation is predominately falling within Band 2 and Band 3 compared to the previous two years. In 2023, the lowest compensation award in the Employment Relations Authority was $500 while the highest was $55,000. This change in approach to compensation is likely associated with the Authority members holding a dim view of employers who have caused substantial harm to employees via their actions and also due to the view that awards have been too low for too long. 

Raising the bar for compensation

In 2024, the bar for compensation was set at a new level with Parker v Magnum Hire Limited & Anor, where the Authority awarded $105,000 for hurt and humiliation for three grievances (bullying disadvantage, suspension and constructive dismissal). The employee was found to have suffered severe harm as a result of the actions of the employer, including a panic attack (which the employee thought was a heart attack) and developing depression, anxiety and PTSD.  

In the Employment Court, the recent case Cronin-Lampe v The Board of Trustees of Melville High School (No 2) (2023) has also reset expectations. In this case, it was found that two school counsellors suffered from PTSD as a result of being exposed to a series of extremely traumatic events during employment and also a claim of breach of contract. While the judge found that an award of $85,000 and $63,750 should be made under the banding system for the hurt and injury to the teachers, it was ultimately found that the compensation for the successful breach of contract claim should prevail as it was a higher amount. 

There are some indications that Cronin-Lampe will be appealed by the Ministry of Education on the basis that the compensation under the bands should have been awarded, rather than the breach of contract matter award. 

Impacts on expectations for compensation moving forward 

The banding system has given parties more transparency around the expected amount awarded for hurt and humiliation, allowing parties to be more informed about their own risk profiles when it comes to settling personal grievance matters. 

For employee parties, this may mean that they have higher expectations for a higher remedy which may come across to employers during mediation or without prejudice discussions. It also may mean that proceeding to litigation is potentially more attractive than previously, given that the previously low awards meant that even those who were successful in the Authority or Courts made little to no profit, due to the costs along the way. 

While these expectations may prove to be difficult for employers to manage, it is important to note that to support a hurt and humiliation claim, employees need to provide information to demonstrate a causal link between the actions of the employer/workplace and the harm. What we may see in mediations is more employers seeking to obtain this information from employees, noting that it may not be considered sufficient for an employee to just provide a medical certificate. 

Moving forward, it is also evident that the Bands will continue to increase over time, as the GF case has demonstrated by adjusting the bands after only six years due to inflation.  

Ultimately, most employment issues are settled in a private and confidential setting, which means that it is difficult to get the full picture as to whether compensation levels will continue to trend within and above Band 2 levels. However, it is clear that the Employment Relations Authority and Employment Court are currently being presented with cases which result in higher remedies being paid, far in excess of what has been awarded previously. 

This is something that all parties should be taking into consideration when approaching employment disputes and the risks ahead.

For advice around settling employment disputes, please contact our team.

Collective bargaining is a cornerstone of the employment landscape in New Zealand, serving as a critical process through which employers and unions negotiate terms and conditions of employment.

In this article, Senior Associate Adrian Tocker outlines why good preparation for collective bargaining is essential, and the key considerations and communication aspects that employers should cover in their planning for collective bargaining.

Collective bargaining

While Mike Tyson said “Everyone has a plan until they get punched in the mouth”, (and that’s undoubtedly true if you are squaring up against Iron Mike), the importance of planning for collective bargaining, partnered with the understanding that you will need to be adaptable, cannot be understated.

Collective bargaining is not what it is perceived to be. It’s not banging and thumping on tables; it’s not an episode of The Apprentice with Trump throwing “you’re fired” across the bargaining table. Bargaining is an opportunity to listen and learn about concerns your employees may have, which they may not be confident to discuss with you individually. It’s also an opportunity to reinforce the nature of the relationship you want with your employees and their representative unions. Establishing and building strong working relationships with employees and unions outside of the bargaining period is equally part of creating the conditions for success.

Expert support can of course help the parties to navigate the collective bargaining process successfully, however there are key areas in which everyone involved needs to prepare. Poor preparation can lead to a range of issues, including prolonged disputes, strikes and industrial action, and strained employer-union-employee relationships.

Key considerations for preparation

Adaptability will always be critical to the bargaining process, however there are key areas negotiators can prepare in:

Term of Agreement

Determining the appropriate duration of the collective agreement is crucial. A balance must be struck between stability and the flexibility to renegotiate terms in response to changing circumstances. Also, just one small note, there is no “right” to backpay, but it does help in getting a deal done.

Wage Increases

Establishing clear guidelines for wage increases, including the frequency and amount, is essential. Consideration should also be given to how these increases align with market trends and the organisation’s financial capacity.

Allowances

Negotiators should review existing allowances and consider whether adjustments are necessary. This includes travel, meal, and accommodation allowances, among others.

Leave provisions

Potential changes to leave entitlements, such as annual leave, sick leave, and parental leave, should be carefully evaluated to ensure they meet both employee needs and organisational capabilities.

Coverage

Defining the scope of the collective agreement, including which employees and job categories are covered, is a fundamental step.

Existing clauses

Reviewing and potentially updating existing clauses to reflect current realities and future expectations is critical. This may involve health and safety provisions, dispute resolution mechanisms, and performance management clauses.

Preparation for industrial action

While the goal is to avoid industrial action, organisations must be prepared to manage it effectively if it occurs. This includes developing contingency plans to minimise operational disruptions and maintain essential services.

Communication with stakeholders

Effective communication with stakeholders is another pivotal aspect of the bargaining process:

Regular updates should be provided to employees, management, and board members to keep them informed about progress and key issues in the negotiations.

Communication with external stakeholders, such as customers and suppliers, may also be necessary to manage expectations and maintain relationships during the bargaining process.

Good Faith requirements

Under New Zealand law, the duty of good faith requires that parties do not engage in conduct that undermines the bargaining process or the representatives involved. For organisations providing services as part of the public health service, there is a specific “code of good faith in the public health service” that is even more restrictive where the employer cannot communicate anything about the bargaining directly to their employees. This includes avoiding direct communication with employees that could be perceived as bypassing the union or undermining the union’s position.

The bottom line

In conclusion, preparation for collective bargaining in New Zealand is crucial for achieving successful and equitable outcomes. “Everyone has a plan until they get punched in the mouth” serves as a powerful reminder of the unpredictable nature of real-world challenges. Thorough preparation combined with agility is without doubt the best way to achieve results.

Remember also that every collective agreement eventually settles and you will still have to come to work the next day and work with your employees. Maintaining those relationships is key. 

For advice on collective agreements and collective bargaining support, please contact our team.

Most people prefer not to argue, but disputes and conflicts in the workplace are unfortunately common and can be damaging to both individuals and organisations. In some cases, managers or human resources teams may be required to know how to investigate an allegation against a staff member or manager.

Here, we outline the types of workplace conflict which can require investigation, and what to consider when starting an investigation.

Types of conflict which may require a workplace investigation

Conflict can stem from a wide range of situations in the workplace. However, some common types of workplace conflict include:

  1. Allegations of bullying
  2. Allegations of sexual harassment
  3. Claims of inappropriate management action.

Undertaking a preliminary investigation

The first step in undertaking a workplace investigation is to determine the origins of the conflict, or undertake a preliminary investigation. To start with, find out when the conflict started and how it began. This will offer greater understanding and allow you to raise points from both sides to obtain as much information as possible.

Speak to everyone involved individually and privately, allowing each party enough time to air their views and opinions on the situation – honest communication is key here. Make sure clear ground rules are set and followed and keep the conversation calm and professional, keeping an open mind as you engage with the various parties.

At the information gathering and preliminary investigation stage, seek any documents or communications referred to as part of this process to assist and inform your next steps.

Formal investigations into workplace conflict

A preliminary investigation may identify a way forward, but typically, you will uncover more issues of concern than you will solutions to problems.

The below should be the basic steps of a formal investigation:

  1. Establish terms of reference for the investigation (TOR). This generally clarifies the scope and the aim of the investigation and sets out how the investigation will be conducted by the investigator.
  2. Interview the parties and any nominated witnesses if applicable.
  3. Provide a draft report for feedback on factual accuracy, generally provided to the complainant (person making the complaint) and respondent (person being complained about).
  4. Consider any feedback provided.
  5. Produce a final report which dependant on the TOR, will advise whether a complaint is substantiated or not as a breach of either an organisational code of conduct or any other standard.
  6. The final report may provide recommendations for next steps, or simply whether the complaint is substantiated or not. The employer then can consider what the appropriate next steps are.

Using an independent third-party investigator

Undertaking a formal investigation internally will generally be more cost effective than using an outside party. However, there are a few things to consider.

First and foremost, it means that you become both the investigator and the decision-maker. This can make you vulnerable to charges of bias and claims that you have found what you expected to find and are therefore not actually impartial.

Secondly, the task of proper investigation is time-consuming and can be emotionally draining for those involved. Be aware that an investigation will take you away from your other responsibilities, and make sure before you start that you have the capacity — and the support if needed — to complete the investigation thoroughly.

An independent, suitably qualified and competent outsider can undertake the formal investigation and give you a report that cannot be challenged for bias. If an outside party has completed the investigation for you, you’re free to make the final decisions on the report and its conclusions, and to move forward without any allegations of bias.

Next steps

Depending on the outcome of the investigation, you may need to continue with formal employment processes. Alternatively, it may be appropriate to utilise either mediation or facilitation to resolve the matter.

Conflict can be difficult to manage, and our team includes experienced workplace investigators, as well as mediators and facilitators who can assist with getting to the bottom of workplace conflict.

Contact us to find out how we can help.

Voluntary redundancy has been widely offered as part of the change proposals that are being reported in the public sector. But what are the pros and cons of voluntary redundancy?

Voluntary redundancy is a tool often utilised when an organisation needs to make cost savings fast and has identified reduction of headcount as an option to do so.

It has been widely reported that New Zealand’s public sector has been offering voluntary redundancy to workers within certain areas of their organisation to assist the organisation with finding savings between 6.5 and 7.5%.

While there may not be support for a proposal for change in the first place, Unions have publicly backed the opportunity for their members to be offered voluntary redundancy by public sector agencies as a first option as it allows employees to “make their own decisions about their future”.

Voluntary redundancy is also useful to utilise as part of a selection criteria, when there are multiple people performing the same position. It can be difficult to create objective selection criteria which achieves the desired outcome for organisations. Utilising voluntary redundancy as the first consideration before selection criteria provides organisations the opportunity to reduce as many numbers as possible before relying on the selection criteria to provide the strategic outcome.

To ensure that voluntary redundancy doesn’t create gaps in an organisation, employers should consider ring-fencing the option. For example, the Ministry for the Environment has asked for “expressions of interest” in redundancy, which allows the agency to retain full discretion over whether they accept expressions of interest for certain roles or individuals.

However a downfall of voluntary redundancy is that there can be a cost associated to it. For example it is not uncommon in the public sector for employees to be entitled to redundancy compensation, RNZ recently found the average redundancy or termination payment for a public servant is about $50,000. For those organisations that provide redundancy payments, it can often mean a short-term dent in their budgets to fulfil their longer-term strategy to save costs.

The option to take redundancy can also result in skilled and long-term employees leaving the organisation, who may not have been made redundant had a selection criteria been applied. Employers regularly apply selection criteria which take into consider tenure, overall experience and attendance rates when deciding who should be selected into the remaining positions.

When it comes to creating the strategy for change, employers should be mindful about their objectives and the subsequent impacts that can come with any outcome.

Here at Three60 Consult we can assist organisations with developing their strategy for change and delivering it. Get in touch if you would like to learn more.