In June 2020, a court decision resulted in an impact to the way workplace investigations are regulated, leaving many employment and health & safety service providers scrambling to obtain the appropriate licence
Those who carry out workplace investigations are required to hold a Private Investigator licence or be regulated under another Act or scheme. This is because the hearing found that Workplace Investigators do in fact meet the definition of “Private Investigator” as it was defined in the legislation:
“In this Act private investigator means a person who, for valuable consideration, …carries on a business seeking or obtaining for any person or supplying to any person any information described in subsection (2).”
Recognising that the decision would catch many people off guard, the PSPLA noted in its decision 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 investigators work.”
What Are the Implications?
This decision significantly restricts who can carry out workplace investigations. The PSPLA stated in their decision that, while the breach was unintentional, the decision may have widespread implications for those who carry out business as employment investigators.
External HR consultants or Health and Safety workplace investigators who do not hold the requisite licence and are not practising lawyers will not be able to conduct workplace investigations and may be found to be in breach of the Act.
Employers may continue to conduct their own internal investigations and law firms and individual lawyers with practising certificates are exempt from the requirement to hold a PI license and may continue to conduct workplace investigations.
Grounds to Conduct a Workplace Investigation
Companies often need to conduct investigations following a workplace accident or serious near miss, in response to a complaint, or if there are allegations or concerns of serious misconduct such as theft, bullying, harassment or sexual harassment.
A good investigation should result in pragmatic corrective actions and allow your organisation to move forward from the event in a productive way and no doubt with employee and management learnings.
Investigations should be completed in good faith and follow the principles of natural justice. For example, avoid forming conclusions before gathering evidence and going through the investigation process.
Why Use An External Investigator?
There are clear benefits to using an external investigator such as increased objectivity, a ‘level playing field’ for all participants of the investigation, as well as the confidence that comes with using a licensed practitioner.
In addition, many companies simply don’t have the time or in-house expertise to carry out investigations themselves, while others want an independent perspective to understand what has happened and make recommendations on how to prevent the problem from reoccurring.
By Rob Thomson, SBS Health & Safety Consultant
0508 424 723
www.safebusiness.co.nz
Safe Business Solutions holds the required Private Investigator licences so you can be confident that members of our team are competent and properly licensed to carry out employment-related as well as health and safety-related workplace investigations for your business.
