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Workshop B Agenda

Pages from HR Law AU Masterclass Brochure

AUCKLAND/TĀMAKI MAKAURAU : 25 SEPTEMBER

WELLINGTON/PŌNEKE : 27 SEPTEMBER

Registration and welcome coffee: 8:30am
Course duration: 9:00am-4:30pm, including networking breaks

PLANNING AND PREPARING FOR THE INVESTIGATION

ADDRESSING LEGISLATION UPDATES, PROCEDURAL FAIRNESS, AND EMPLOYER OBLIGATIONS

  • Ensuring procedural fairness, independence, transparency, and standards of proof

  • Understanding the requirements for workplace investigators (including workplace investigators that fall within the definition of a “Private Investigator” under the Private Security Personnel and Private Investigators Act 2010);

  • Consideration of guidance from WorkSafe New Zealand and the Human Rights Commission in relation to sexual harassment;

  • Understanding the obligations under the Employment Relations Act 2000, Health and Safety at Work Act 2015, Harassment Act 1997 and Human Rights Act 1993in relation to sexual harassment and reporting obligations;

  • Consideration of recent decisions from the Employment Relations Authority, Employment Court and the Human Rights Review Tribunal in relation to investigations of bulling/sexual harassment claims; and

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PRELIMINARY ISSUES TO CONSIDER

  • Review factors influencing whether an investigation should be undertaken - assessing seriousness of allegations, complexities of complaints, and consequences of failing to investigate

  • Assessing when a formal investigation is appropriate

  • Determining other suitable legally acceptable avenues for conflict resolution

  • Suspension

  • Identifying an investigator – internal or external?

  • Legal professional privilege

  • Ascertaining the purpose and scope of the investigation

  • Timeframes for investigations

THE INVESTIGATION PROCESS

CONDUCTING AN EFFECTIVE INVESTIGATION PROCESS

  • Planning - the importance of not over complicating investigations

  • What should the Terms of Reference cover and who should prepare them?

  • Evidence gathering prior to interviews

  • Deciding who to interview and in what order

  • Designing an effective questions framework

  • Setting expectations of people involved

  • Ensuring complainant and witness anonymity

  • Record keeping and maintaining confidentiality

  • Investigative interview techniques and style – balancing sensitivity with the need to ensure robust investigation

MANAGING DIFFICULT ISSUES IN INVESTIGATIONS

  • Dealing with conflicts of interest

  • Sick/stress leave

  • Handling requests for anonymity and silence

  • Hearsay

  • Parallel criminal investigations (Police reporting, the rights to silence and against
    self-incrimination)

  • Handling information requests

  • Managing difficult representatives

  • Maintaining independence

CASE LAW REVIEWS

  • When investigations go right, when they go wrong, and what we can learn from the outcome

FINALISING THE INVESTIGATION AND NEXT STEPS

  • Evaluating the evidence

  • Dealing with conflicting evidence

  • Tips on how to make well-reasoned findings of fact, assessments of credibility and determining whether factual findings meet relevant definitions such as for bullying, sexual or racial harassment, or discrimination under legislative definitions, policies and/or case law

  • What should and shouldn't a report contain? Is it legally privileged?

  • Producing a report that will withstand external scrutiny and challenge

  • What information do you need to provide to the respondent, complainant, witnesses?

  • Evaluating likely outcomes of the investigation process

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