{"id":322473,"date":"2025-10-22T00:26:12","date_gmt":"2025-10-22T00:26:12","guid":{"rendered":"https:\/\/www.europesays.com\/us\/322473\/"},"modified":"2025-10-22T00:26:12","modified_gmt":"2025-10-22T00:26:12","slug":"appoint-an-outside-investigator-or-keep-it-in-house-tips-and-tricks-for-handling-sticky-workplace-problems","status":"publish","type":"post","link":"https:\/\/www.europesays.com\/us\/322473\/","title":{"rendered":"Appoint an outside investigator or keep it in-house? Tips and tricks for handling sticky workplace problems"},"content":{"rendered":"

Neil Sands<\/strong><\/p>\n

Recent court decisions that clarify an employer\u2019s obligations and responsibilities when dealing with workplace problems mean bosses must step up and conduct their own inquiries, rather than simply \u201cpassing the buck\u201d to external investigators, experts have told TLANZ\u2019s Burning Issues conference.<\/p>\n

The conference in Auckland earlier this month examined a range of topic relating to employment law, including the rise in external workplace investigations when things go wrong.<\/p>\n

As Employment Court Chief Judge Christina Inglis noted in her keynote address, the \u201clegalisation\u201d of employment issues had resulted in an \u201cexplosion of independent employment investigators, who now routinely assist employers with their disciplinary and other processes\u201d.<\/p>\n

But employment law specialist Margaret Robins said it could be difficult for employers to know when an external investigation was appropriate or when to handle a matter in-house.<\/p>\n

\"Margaret<\/p>\n

Margaret Robins<\/strong><\/p>\n

Robins, who operates Epsom-based Workplace Law, said the test for when to appoint an external investigator was contained in s103 of the Employment Relations Act.<\/p>\n

\u201cThe authority or court will ask, \u2018could a fair, reasonable employer have commenced an investigation and, given the employer\u2019s resources, was the employer\u2019s choice of an in-house or external investigator the choice that a fair and reasonable employer could have made?\u201d she said.<\/p>\n

\u201cIf the employer decides an investigation is appropriate, who should conduct it? The case law suggests that the employer should look in-house first.\u201d<\/p>\n

\u00a0<\/p>\n

\u2018Tightrope assignment\u2019<\/strong><\/p>\n

Robins said there were some circumstances when an in-house investigation was not suitable, such as when the issue concerns a senior member of the organisation or the issues are serious and complex.<\/p>\n

But she said even when an external investigation was justified, it was only the first part of a four-step process involving the employer:<\/p>\n

Step 1 \u2013 whether the employer has sufficiently investigated the allegations<\/p>\n

Step 2 \u2013 whether the employer raised its concerns with the employee<\/p>\n

Step 3 \u2013 whether the employer gave the employee a reasonable opportunity to respond<\/p>\n

Step 4 \u2013 whether the employer genuinely considered the employee\u2019s explanation before taking action<\/p>\n

\u201cSo, the investigator takes the first step and the employer is responsible for the following three steps,\u201d Robins said.<\/p>\n

To demonstrate the requirements employers must meet, she cited JSC v Landcorp Farming (T\/A P\u0101mu), a March 2024 determination of the Employment Relations Authority.<\/p>\n

The case concerned JSC, a senior manager, who allegedly made a sexually inappropriate comment to an employee, prompting an external investigation that found he had sexually harassed the employee, eventually leading to his dismissal.<\/p>\n

However, the Authority made it clear that the employer could not simply accept the external investigator\u2019s conclusions.<\/p>\n

Robins outlined the extensive steps the employer\u2019s decision-maker took after receiving the external report.<\/p>\n

The relevant person read the report more than once. He consulted HR, he read the interview transcripts, worked through the issues on a whiteboard, then reviewed JSC\u2019s feedback on the draft report.<\/p>\n

Following that, he looked at text messages between the complainant and JSC, then examined how the investigator had tested the complainant\u2019s credibility. After all these steps, he concluded, giving reasons, that he agreed with the investigator\u2019s finding of sexual harassment.<\/p>\n

\u201cEmployers may be left wondering what lengths they have to go to test the investigator\u2019s analysis and findings,\u201d Robins said.<\/p>\n

\u201cWhat, in practice, is the difference between the employer conducting a truly independent inquiry and re-running the investigator\u2019s investigation? It feels like a tightrope assignment.\u201d<\/p>\n

But she said one thing was clear: \u201cThe buck now well and truly stops with the employer\u201d<\/p>\n

\u00a0<\/p>\n

\u2018Short shrift\u2019<\/strong><\/p>\n

Robins said the courts had also provided decisive guidance on the need for employers who say they follow tikanga principles to honour the commitment, regardless of whether the employee being investigated is M\u0101ori.<\/p>\n

In a paper presented to the conference, she added: \u201cAt present, the legal obligation to apply tikanga is limited to employers who have expressed a commitment to tikanga principles, but the obligation is likely to be interpreted more widely as the case law develops.\u201d<\/p>\n

The courts had indicated that employers who express a commitment to tikanga must properly incorporate M\u0101ori customary law into workplace investigations.<\/p>\n

Robins pointed to the 2023 decision in GF v Comptroller of the New Zealand Customs Service [2023] NZEmpC 101<\/a>, which concerned a Customs officer who was terminated for refusing the covid-19 vaccine during the pandemic.<\/p>\n

The Employment Court found that because Customs operates under the Public Service Act, it had heightened tikanga obligations, even though GF was not M\u0101ori.<\/p>\n

It found that employees did not need to ask for tikanga to apply and placed the onus for understanding M\u0101ori customary law on the employer.<\/p>\n

\u201cIt\u2019s no excuse for the employer to say, \u2018we\u2019re on a journey to understand tikanga\u2019. Both the court and the authority just gave that argument very short shrift,\u201d Robins said.<\/p>\n

For more details on what triggers an external workplace investigation and how tikanga applies, read Robins\u2019 full Burning Issues paper here<\/a><\/strong>.<\/p>\n","protected":false},"excerpt":{"rendered":"Neil Sands Recent court decisions that clarify an employer\u2019s obligations and responsibilities when dealing with workplace problems mean…\n","protected":false},"author":3,"featured_media":322474,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[14],"tags":[64,420,67,132,68],"class_list":{"0":"post-322473","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-jobs","8":"tag-business","9":"tag-jobs","10":"tag-united-states","11":"tag-unitedstates","12":"tag-us"},"share_on_mastodon":{"url":"https:\/\/pubeurope.com\/@us\/115414983271618921","error":""},"_links":{"self":[{"href":"https:\/\/www.europesays.com\/us\/wp-json\/wp\/v2\/posts\/322473","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.europesays.com\/us\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.europesays.com\/us\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/us\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/us\/wp-json\/wp\/v2\/comments?post=322473"}],"version-history":[{"count":0,"href":"https:\/\/www.europesays.com\/us\/wp-json\/wp\/v2\/posts\/322473\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/us\/wp-json\/wp\/v2\/media\/322474"}],"wp:attachment":[{"href":"https:\/\/www.europesays.com\/us\/wp-json\/wp\/v2\/media?parent=322473"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.europesays.com\/us\/wp-json\/wp\/v2\/categories?post=322473"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.europesays.com\/us\/wp-json\/wp\/v2\/tags?post=322473"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}