According to McElroys employment law
specialist and Auckland District Law Society Employment Law Committee member, Christine Chilwell there are four mistakes that can be made that could see a case be considered procedurally unfair:
Not telling the employee what the allegations are they are required to answer:
This is a regular occurrence according to Chilwell in that an employee turns up to a meeting to find that they have to answer other allegations they were unaware of and haven not had time to prepare a response to.
Not giving the employee reasonable time to prepare a response before the meeting or giving them reasonable time to take advice:
Additionally failure to tell employees they are entitled to get advice and be represented at the meeting.
Not informing the employee issues the person investigating is considering which might influence the decision:
“An example is a case where an employer was investigating an employee’s performance and received an email from the employee’s manager saying that the employee had had ample training. The employer relied on this evidence from the manager when it made its decision, but did not tell the employee about the email. This would be held to be a breach of the duty of good faith,” Chilwell said.
Not being specific about what provisions in an employment policy have been breached:
According to Chilwell employers often say the employee has breached a company policy but they don’t say what exact clause of the policy it was.
To avoid making these mistakes HR should take time when putting forth the allegations to ensure all issues are covered, ensure they inform the employee of their rights and be specific so the employee knows exactly what they need to respond to. They should also provide the employee with all material information that they obtain in the investigation process and which could influence their decision.
Another issue that may arise when conducting an investigation can be a difference in recall of what happened. Chilwell advises that, in cases like this, it is important to look for corroborating evidence such as a witness, email or document that can support one version over the other.
“There might be other factors about the workplace that make it more inherently likely that employee A is right or employee B is right. If you weigh up these things and decide that you have enough evidence that A is more inherently credible than B you can make that decision but should have reasons for making that decision and set it out in a letter that refers to the supporting documents, or explains why you inherently believe A over B,” Chilwell said.
And if you can’t find corroborating evidence or factors that make it inherently plausible one way or the other than Chilwell advises its best to say a decision on the matter can’t be reached.
Witnesses wishing to remain anonymous can be another stumbling block in investigations but Chilwell warns secret witnesses are not a safe way of proceeding.
“Case law has always said that it’s an important part of the employee’s ability to respond that they know who has been saying these things about them,” she said.
“It’s always been an important part of fair process and … since 2000 the ERA brought in the concept of duty of good faith. Its part of the duty of good faith to treat employees with openness and transparency and if you’re holding that information back from them, you’re not being open and transparent.”
There can be exceptions such as when there is a power imbalance or the person is very vulnerable; for an example a bullying situation.
“An example might be where school students have complained about their teacher and are afraid of retribution if their identity is revealed,” Chilwell said. “The employer might be justified in proceeding without identifying the students, provided it sets out the material allegations that the teacher is required to respond to. But cases where the employer is justified in not identifying the complainant will be rare.”
When an issue arises that requires a workplace investigation it can be the start of a long and expensive process for an organisation, so it’s important to get it right from the outset. So what can you do to make sure your investigations hold up to scrutiny?