November 2018

Picture this: you own a medium-sized business with some 10 employees. You are busy, stressed and increasingly overwhelmed by the workload. The last thing you have time for is a niggly employment issue.

Next thing, you are faced with an employment complaint. Perhaps one employee has made a complaint against another, or an allegation of serious misconduct, or employees are raising issues that they are being overworked, or there is an inappropriate ‘culture’ in the workplace. These become a major distraction and take you away from the important task of focussing on your business.

Like it or not, employers are required to address complaints made in the workplace. The necessity for this comes out of the obligations of good faith obligation in the Employment Relations Act 2000 and to protect employees under Health and Safety legislation. Employers who don’t, could find themselves facing personal grievance complaints.

In conducting any enquiry into a complaint, employers must make sure they follow a strict procedure. Even where it would have made no difference to the outcome, an employer could find themselves paying out because they have made some small mistake in their process. While extremely frustrating for an employer, the courts expect nothing less than utmost fairness where employees’ livelihood or mental wellbeing is at stake.

In our experience, most employee complaints during an investigation will arise from a perception that the employer was biased and acted in a way that was prejudicial to them. Simply having a closer relationship with one employee over another, having information about the complaint prior to it being made, or being involved in the complaint (especially when it is against the employer or about management/culture of the business) could disqualify the employer from conducting the investigation. A mere perception of bias is enough for a claim.

One easy, and often forgotten, solution to these issues is to engage an independent investigator. An independent investigator is able to conduct a fair and unbiased enquiry into the issue and ensure all necessary procedural elements are adhered to. An investigator will report factual findings as to whether the complaint is sound, or which version of events should be preferred. Once the outcome of the investigation is known, the employer can then make an informed and balance consideration of the appropriate course of action.

An independent investigator takes away the pressure of having to ‘choose’ between employees, or justifying an employer’s actions. It also frees up time for the employer, ensures employees can trust the process and be open with the investigation, and reduces the risk of a personal grievance claim. Yes, an investigation can be a more expensive process. But when you add up the costs of an internal investigation (resources, time, low productivity, paying out a personal grievance), the costs are seemingly relative.

An idea worth considering.