News & Thinking

Who can conduct workplace investigations?

Contributed by:

Kathryn McKinney
Partner

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Kathryn McKinney


What happened?

On 4 June 2020, the Private Security Personnel Licensing Authority (PSPLA) issued an important decision (1) addressing the issue of whether persons or companies carrying out workplace investigations for employers into employee conduct are carrying out private investigations and therefore, are required to hold a private investigator licence.

In the case, “C Limited” was contracted by Mrs A’s previous employer. Mrs A complained:

  • about the way the investigation was conducted; and
  • that the directors of C Limited who conducted the workplace investigation were required to be certified as private investigators.

C Limited described their process for conducting an investigation:

  • Participants would voluntarily participate in an interview and may have a support person or legal representative present.
  • The employer could provide the investigator with relevant evidence and the investigator can request additional information from the employer.
  • The respondent and the complainant are provided with the opportunity to review and comment on all the evidence collected by the investigator.
  • Both the complainant and respondent are provided with the opportunity to review and comment on the draft investigation report.
  • A final investigation report is provided to the employer setting out the investigators opinion on whether the factual allegations occurred and, if so, whether that conduct amounts to a breach of the employer’s relevant policies.

What was the decision?

The PSPLA accepted that employment investigations may not have been on parliament’s mind when the Private Security Personnel and Private Investigators Act 2010 (the Act) was passed, however, the work is “a relatively recent feature in the New Zealand market … and involves the type of work that parliament intended to be covered by the Act.”

The PSPLA concluded that C Limited, by carrying out the business of employment investigators with the steps outlined above, came within the definition of a private investigator. The directors did not have a licence to conduct private investigator work and did not fall within any of the exemptions and so were in breach of the Act.

What are the implications?

This decision appears to significantly restrict who can carry out workplace investigations. The PSPLA said that while the breach was unintentional, the decision may have widespread implications for those who carry on business as employment investigators.

External HR consultants or 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 these requirements and may continue to conduct workplace investigations.

1 [2020] NZPSLA 007

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