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Bev Edwards

Feb 12, 2021

4 min read

Ticking the boxes for the Employment Court  

Investigations are a difficult process and often come at a time when the employment relationship has deteriorated between employees or between an employer and an employee. Any investigation process is also likely to incur a certain level of cost, time and risk. The decision whether to do it in-house or contract an external investigator will depend on:

• the nature and seriousness of the matter (including any sensitive matters)

• the seniority of the employee

• the degree of bias that may be perceived if the investigation were to be conducted internally

• the skill and experience within the employer’s business for conducting the level of investigation required

• the timing or urgency of the investigation, including whether the complaint has been raised during a peak period for the employer, or if there is a risk to health and safety and/or

• the extent of the resources (time and personnel) that would need to be dedicated to the investigation when compared with the costs of an external investigator.

In-house investigation

If an employer is conducting a workplace investigation, then four key actions are to:

1. ensure all of the allegations are clearly set out to the employee;

2. all processes are conducted in compliance with any applicable organisational policies and ensure all parties involved are respected (which includes agreements as to confidentiality and not victimizing others) and have an opportunity to state their version of events;

3. provide a report of the steps you have taken, the findings you have made, and the recommended course of action;

4. clearly identify whether the allegation is made out or not and provide evidence in support of a conclusion.

External investigator

The real cost, though, will be if you get it wrong. With nearly 20 years’ experience in conducting both criminal and employment investigations, I can guarantee that after conducting an investigation, I will be asked "Do you think they are telling the truth?" As the la test blockbuster private investigator book BUSTED! (Stories from New Zealand’s Leading Private Investigator- Ron McQuilter 2021) says - it doesn't matter what I think. My role is to remain independent and conduct a thorough investigation. Whether it’s a criminal or employment law case, all lines of enquiry should be reviewed for evidence to either prove or disprove the allegation. In all investigation cases, I am mindful of the requirements that the Employment Court has set out as to what is expected in an investigation.

In June 2020, the Private Security Personnel Licensing Authority (PSPLA) ruled that those who carry out workplace investigations on behalf of an employer are required to hold a private investigator license or be regulated under another Act. The PSPLA observed that workplace investigations are:

“a relatively recent feature…. parliament clearly intended the definition of private investigator to cover all people in the business of carrying out investigations into a person’s character, actions or behaviour. This is an integral part of an employment investigator’s work.” 

To be clear, any external person conducting an employment-related investigation must now be certified as a ‘private investigator’ or hold an exemption to this requirement i.e., qualified solicitors.

So back to the start: you have identified a qualified investigator – what check list did that Employment Court case set out? The litmus test for this is ‘what a fair and reasonable’ employer could have done.” 

Suspension?

The decision to suspension is not for the investigator to make. Suspension is a serious step and alternatives to suspension should be considered. The courts have ruled that the individual concerned must be given a reasonable opportunity to make submissions about suspension before it is imposed.

Terms of reference

Until provided with the terms of reference, the investigator must have no prior knowledge of the incident. The terms of reference is the roadmap to clearly outline all the details of the investigation and should ultimately be a plan for the entire process. The terms should

• clearly identify the matters being investigated, as well as any limits to the investigation;

• outline who is conducting the investigation;

• identify witnesses;

• give timeframes;

 • make it clear that a support person for any party is entirely appropriate; and

• who the contact person is for the investigation.

The Process and Outcome

The Goel case above set out the gold standard of process. The goal of natural justice was perfectly achieved and Judge A D FORD stated that: “In many ways, the process followed by Mr Firman was a textbook example of how a disciplinary investigation should be carried out.” Mr Firman consulted the employee under investigation at every step of the investigation. He included the employee in the formulation of his questions, getting ‘buy-in’ to the process. He ensured that the employee had a support person and that a full and complete record of every statement taken was verified. He completed a draft report which he provided to the employee for comments, before coming to his final Formal Investigation Report. His final conclusions indicated the specific behaviours from Mr. Goel that did not align with the MPI Code of Conduct which all staff were expected to be familiar with. The Employment Court commendation, that any investigator strives to achieve, was that – “the investigation process carried out into the misconduct allegations against Mr. Goel was exemplary in every respect and cannot be faulted.”

Conclusion

Investigations in the workplace can have a substantial impact on the morale of your business. Often the investigation is not thorough enough and issues are left unaddressed, or it can be overbearing and people feel unfairly treated.

Both of these scenarios can impact your productivity, staff retention, can lead to litigation risk and ultimately could damage your business reputation.

Make sure your organization is protecting itself by ensuring that your in-house investigators are trained regularly or if necessary, appoint an independent expert to support you, especially for more sensitive matters. If any of this concerns you, and you feel you need help, please contact me. If nothing else I hope this post makes you think about reviewing what you currently do – after all it’s a new year and a good time to reset for the year ahead.

Bev Edwards

Jun 17, 2020

4 min read

Post-Covid Remote-Working – Will Permanent Change Result From The Pandemic?

In a bid to curb the coronavirus outbreak, New Zealand employers put in place precautions to stop the spreading of COVID-19 – remote working (partly or fully from home) being one of them. If your business had a Working from Home Policy, the transition may have been smoother than if you did not.

Fast forward to Covid Level 1, and many employers are investigating permanently implementing the flexible remote-work model that was so successful over lockdown. Location bias is a critical and, as yet, poorly understood factor standing in the way of successful flexible workplace policies in New Zealand. The prime minister has made informal comments suggesting employers consider a four-day working week, and other flexible working options, as a way to help employees address work/life balance issues. Many employers have already adopted flexible working arrangements because they see them as making good business sense. They can help:

* Retain skilled staff and reduce recruitment costs

* Raise staff morale and decrease absenteeism

* Meet labour market changes more effectively.

Perpetual Guardian, a business of more than 200 people, transitioned to a four-day work week in 2018. The business found the shift made employees happier and more productive and also had benefits for the environment, family and social lives, and climate change.

AMP Wealth Management surveyed its staff, and 70 per cent preferred to combine home and office work, 22 per cent wanted to work primarily from home, and only 8 per cent wanted to work from the office all the time. Post- covid, AMP will be moving out of its Auckland and Wellington central city offices. Staff and clients who need to meet face-to-face will do so in smaller meeting-based premises outside the central city areas.

How to start Remote- working

Employers may already be familiar with flexible working arrangements, which can be agreed between employers and employees either informally, through a workplace policy, or by seeking a variation to individual terms and conditions of employment under Part 6 of the Employment Relations Act 2000. Implementing successful remote-working requires a good faith consultation process, and flexible working arrangements can include variation(s) of the working arrangements, such as:

· Hours of work

· Days of work

· Change to the start and/or finish times

· Change to total number of hours worked

· Place of work (for example, at home)

· Reduction of remuneration for agreed reduced hours

Unless both parties specify that the new working arrangement will be for a set period of time, the agreed changes will be a permanent variation to the terms and conditions of employment. Making a permanent change to an employment agreement is a big step and should not be entered into lightly. Perhaps the parties consider a trial period or a limited period of remote-working flexibly so that any problems can be ironed out before things are put on a permanent basis. (A warning that employees bound by a collective agreement need to follow normal collective agreement variation.)

As with all contractual variations, experience shows that the best way for both parties to understand each other’s position and identify a solution that meets all their needs is by discussion. As the employer, it is recommended that you draft a Remote-work Checklist which covers the basics. Your list needs to build a case that both meets the business needs and those of your employee. A structured discussion will provide both parties with the opportunity to talk about the proposed remote-working arrangement in depth and consider how it might be accommodated. It will help if both the employer and the employee are prepared to be flexible. If the requested working arrangement cannot be accommodated, a discussion may help identify an alternative working arrangement. Some items for consideration are –

*What kind of changes can the business sustain?

*What changes (if any) the employer may need to make? e.g., changes to the way the team works together, changes to the physical set up of the workplace, etc.

*What potential problems may arise and how do you propose these be overcome? e.g., staff may no longer be at work when the business opens but you may be able to show that this is not important because, either, it is not a busy time, or, a colleague may be able to stand in for others

*Will there have to be agreement to a reduction in pay if the employee will be working fewer hours?

*Would a trial period help?

The Requirements

Once the discussion has an agreed remote-working arrangement, the normal rules of Employment contract variation apply.

· Remote-working arrangements must be in writing and be signed

· Have a clear start date (and end date if fixed term)

· Provide as much detail as possible about the working arrangement

· Detail exactly what appropriate support and information will be provided by the employer during the course of the variation e.g., is the employer to contribute to the    employee’s ’running expenses’ in light of the agreed working arrangement

· Ensure that all health and safety requirements have been satisfied e.g., desk height and style of chair, lighting, security of files and so on

· Specify what dispute resolution process must be followed if there is a disagreement.

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Bev Edwards

Apr 27, 2020

1 min read

Coronavirus has held up manufacturing so I need staff to do other work - how?

Many companies are going fully transparent with their internal communications and policies in response to the virus. Staff are scared and unsure of what is going on and how it may impact their jobs. Every workplace setting today should be discussing their policies and directives, step by step, with their employees. If you do not have a Crisis Communication Policy in place, consider your communication to everyone working on site or remotely, as to how you intend to respond. A clear plan of action is required in in the workplace, to deal with this pandemic.

It is important to provide clear guidance to employees about at-work expectations over the next few months. The first place to look, when you are considering a variation of an employee’s role, is their IEA. At best, it should allow some flexibility to the position; at worst there might be strict compliance to the ‘letter of the job description.’ Before you implement any changes to the terms and conditions of employment, be aware of the Agreements in place, unions, and other agencies you need to consider (e.g. Worksafe.)

Should you not have a policy in place to deal with variable hours and roles, or need to communicate your operational requirements, whilst considering your staff’s circumstances, consider getting a consultant to guide you through these uncharted waters.