Navigating the intersection of criminal law and employment investigations can be challenging for employers and employees alike. In this article, Senior Associate Graham Emery explores the crucial distinctions between criminal and employment investigations in New Zealand, and outlines the considerations and rights involved in each process.
How to deal with employee misconduct that might also be a criminal matter is one of the trickiest challenges employers face. It’s a challenging place to be—you want to act fairly, protect your workplace, and at the same time make sure you’re not trampling someone’s legal rights.
The Basics: Two very different worlds
Let’s start with the obvious: criminal investigations and employment investigations are not the same thing.
- Criminal investigations are run by the police. They’re about figuring out if someone broke the law and might face charges. The stakes are high, and the standard of proof is “beyond reasonable doubt.”
- Employment investigations are internal. They’re about figuring out if someone broke workplace rules or their employment agreement. The standard is lower—“more likely than not.” The outcome could be suspension, a warning, or even dismissal.
The tricky part is when these worlds collide. Say an employee is suspected of stealing company data. The police get involved, but the employer still needs to know what happened internally. What do you do without stepping on legal toes?
Employee Rights in an Employment Investigation
One of the biggest differences is the employee’s rights:
- In criminal cases, everyone has the right to remain silent—they can’t be forced to say anything that might incriminate themselves.
- In employment cases, you’d usually expect cooperation. But if a criminal matter is pending, employees can invoke their right to silence. And crucially, you can’t punish them or assume guilt if they choose to remain silent (Wackrow, Singh).
For employers, that’s a tension point. You want answers, but you also have to respect the law. Ask the wrong question, and you could inadvertently affect a criminal trial.
Timing and Process
So how do you handle it practically?
- You can continue your employment investigation, but you need to be careful. Avoid questions that go straight to the criminal charges.
- Options include:
- Investigating non-criminal aspects of the conduct.
- Suspending the employee until criminal matters are resolved.
- Delaying disciplinary action entirely.
Courts look at the bigger picture: the employee’s rights, your need to run a fair workplace, and the potential impact of delays.
Evidence and Confidentiality
Another key difference:
- Criminal investigations are formal and follow strict rules about evidence. Anything an employee says in an employment investigation could later be used in court.
- Employment investigations are more flexible, but you must avoid forcing someone to self-incriminate. It’s a fine line, and taking advice is essential to navigate it.
Practical Tips for Employers
If you’re facing a situation like this, here’s what to think about:
- Reporting: You’re not always legally required to report suspected criminal conduct but consider the reputational risk if you don’t.
- Timing: It may be worth considering timing of reporting – is it fair to report before you have completed your investigation and have all the facts?
- Focus: Investigate what you can—non-criminal issues first, park the criminal ones if possible.
- Suspension: Sometimes it makes sense to suspend an employee on pay while the criminal matter is sorted. Yes, it’s costly, but it may help keep things fair.
- Document everything: Any agreements with the employee should be in writing. Make it clear what’s happening with pay, status, and future.
- Seek advice: Don’t skip this step. Sound advice can help you structure your investigation so you’re on solid ground legally and practically.
Lessons from the Courts
- Russell v Wanganui City College [1998] 3 ERNZ 1076: You may need to pause disciplinary action if criminal charges are imminent.
- Wackrow v Fonterra [2004]1ERNZ 569: You can continue investigations, but avoid questions tied directly to criminal charges, and you cannot draw conclusions from silence.
- Singh v Department of Labour: [2005] 1 ERNZ 569: Silence cannot be treated as misconduct.
- Sotheran v Ansett [1998] 3 ERNZ 1076: If multiple employees are involved, extra caution is needed if only some face criminal charges.
Conclusion: Walking the Tightrope
The truth is this is a balancing act. Employers have to keep the workplace safe and fair but also respect the employee’s legal rights. It’s like walking a tightrope: one wrong step, and either you or the employee could be exposed to unnecessary risk.
The best approach? Be thoughtful. Separate criminal issues from workplace issues where you can. Seek advice. Document everything. And above all, treat the employee fairly while keeping the workplace running.
If your or your organisation would like further advice or support around workplace investigations, please get in touch with our team.
