Workplace investigations can be among the most challenging and sensitive aspects of managing a business and employing staff. These processes can be stressful and disruptive, but there are ways to minimise risks and reduce potential disruption.
This article explores when it may be appropriate to appoint an external workplace investigator, and why doing so can be critical to ensuring independence, procedural fairness in investigations and defensible outcomes.
When and who to engage as an investigator?
The first question every employer must ask is whether a formal investigation is required at all. In some cases, an employment issue or matter can be resolved through informal clarification, coaching, or mediation, particularly where there is no significant dispute over the facts or where relationships can be repaired without formal findings. If, after exploring these informal measures, or in situations where exploring alternative dispute resolution processes is not appropriate, a formal employment investigation process may be necessary. This typically involves a workplace investigation, conducted in accordance with the principles of natural justice (fairness).
An employer needs to clearly identify the allegations, provide affected parties with an opportunity to respond, gathering and assessing relevant evidence, and making findings based on that evidence. In some instances, this is advised via a formal terms of reference. Certain matters are best addressed through a formal investigation, including allegations of serious misconduct, bullying, harassment, discrimination, fraud, or any conduct that may result in disciplinary action or termination of employment.
If a formal process is necessary, the next critical step will be determining who to appoint as an external investigator. The choice of investigator can come under scrutiny, and it is recommended that an investigator be impartial to ensure that the process is conducted in a fair and reasonable manner. It is essential that employers consider whether there may be a perception (or actual) bias. Conflicts of interest need to be managed. This is particularly important in smaller organisations or businesses, as the owner/ senior manager can be directly involved in the allegations and therefore, excluded from being an internal investigator.
Engaging an external investigator (i.e., independent to the organisation) helps maintain impartiality and independence, which can be essential where the allegations are serious, sensitive, or involve senior staff. External investigators are also preferable where there are multiple complainants, confidentiality issues, or complex legal and factual questions.
Recent case law supports this approach. In JSC v Landcorp Farming Ltd, the Court found that an external investigation was justified due to the seriousness of the sexual harassment allegations and the seniority of the respondent.[1] Similarly, in E tū v Singh, the Court emphasised that a well-resourced employer could be held to a higher standard and found the internal investigation to be inadequate.[2] By contrast, in Hill v Oranga Tamariki, an internal process was upheld because the facts were straightforward, and the manager conducting the investigation was independent and suitably senior.[3]
Legal obligations during and after an external investigation
Engaging an external investigator does not excuse the employer from responsibility. Legally, the investigator acts as the employer’s agent, and the employer remains responsible for ensuring that the investigation is conducted fairly and lawfully, and that any resulting decisions are justified.
The Employment Relations Act sets out four key obligations that apply in any disciplinary context. Employers must:
- properly investigate the allegations;
- raise concerns with the employee;
- give the employee a reasonable opportunity to respond; and
- genuinely consider the employee’s explanation before making a decision.
Failure to meet these obligations can make a dismissal or disciplinary action unjustified, even if an external investigator was involved. A common mistake is treating the investigator’s report as conclusive, rather than assessing the findings independently and with a critical eye.
For example, in Gumbeze v Oranga Tamariki, the employer relied heavily on a flawed investigation report that failed to clearly link serious misconduct findings to the employee’s actual conduct. The Court found that the employer had not engaged in a genuine assessment of the evidence and had failed to meet its obligations under the Act.[4]
Another key obligation is to communicate transparently and fairly with the employee throughout the process. In Jacobsen v Raukura Hauora o Tainui Trust, the employer failed to provide the employee with essential details of the complaint, the Terms of Reference, or updates on the investigation’s status, even after repeated requests. This was found to be a serious breach of good faith, contributing to a resignation that the Employment Relations Authority ruled was both foreseeable and avoidable.[5]
Managing delay, suspension, and risk in workplace investigations
Conducting a workplace investigation can typically take between one and three months, though more complex matters can take longer. During this time, employers must manage employment relationships with care.
Suspension should not be used automatically. If the employee can continue to work without posing a risk to others or undermining the integrity of the process, it is usually best to allow them to remain at work. This approach helps preserve the employee’s dignity and avoids reputational harm, particularly if the allegations are not upheld.
That said, suspension may become necessary once a report with serious findings has been delivered. In JSC v Landcorp and Kinzett v FENZ,[6] summary dismissals were found to be unjustified, in part because the employees had remained at work for some time after serious concerns had been raised. This undermined the employer’s later claims of urgency or risk.
Access to information
Employers also have good faith obligations under section 4(1A)(c) of the Employment Relations Act to provide employees with access to relevant information before making any decision that might adversely affect their employment.
In the context of external investigations, relevant information includes:
- the nature of the allegation or sufficient detail to allow a meaningful response;
- the identity of the investigator;
- draft and/or final Terms of Reference;
- key evidence that supports the findings; and
- the draft investigation report (where applicable).
Even where the full body of evidence is not shared (for example, transcripts or internal notes), the employer must be able to demonstrate that the decision-maker has genuinely reviewed the material, assessed the credibility of the findings, and made an independent, fair decision.
Final guidance for employers
Workplace investigations must balance urgency with fairness, independence, and legal compliance. Choosing the right investigator, internal or external, is crucial, but employers must remember that they remain ultimately responsible.
If your organisation needs help with a workplace investigations, appoint Ford Sumner Lawyers as your external investigator. If you need advice on how to conduct investigations, or seek general employment law advice, our Employment Team can assist. Please contact Jaesen Sumner or Paul Gillespie for more information.
FAQ
1. When should an employer appoint an external workplace investigator?
An employer should consider when to appoint an external workplace investigator where allegations are serious, sensitive, or involve senior staff. Engaging an independent workplace investigator helps ensure impartiality and procedural fairness in investigations. External workplace investigations are also recommended where there may be perceived bias, conflicts of interest, or complex legal issues.
2. What are employers’ obligations during external investigations?
During external investigations, employers must comply with the Employment Relations Act 2000. This includes properly investigating allegations, raising concerns with the employee, giving them a reasonable opportunity to respond, and genuinely considering their explanation before making a decision.
Even when conducting external workplace investigations, the employer remains legally responsible for ensuring the process meets the standards required under employment law in NZ.
[1] JSC v Landcorp Farming Limited T/A Pāmu [2024] NZERA 162.
[2] E tū Incorporated v Singh [2024] NZEmpC 84.
[3] Hill v The Chief Executive Oranga Tamariki – Ministry for Children [2024] NZERA 336.
[4] Gumbeze v Chief Executive of Oranga Tamariki – Ministry for Children [2024] NZEmpC 133.
[5] Jacobsen v Raukura Hauora o Tainui Trust [2024] NZERA 446.
[6] Kinzett v Fire and Emergency New Zealand [2025] NZERA 132.