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Workplace Investigations – A Case for Caution

  • 28 August 2016
  • By admin

Reprinted with permission from law firm DLA Piper.

In Reader v Canterbury District Health Board1 the Employment Relations Authority (ERA) case highlighted the need for employers to undertake a robust and fair approach to workplace investigations.

The ERA found that the Canterbury District Health Board (CDHB) unjustifiably disadvantaged Mr Reader, a long serving registered nurse, for saying the ‘N’ word to a patient.  Mr Reader had received a formal warning for serious misconduct after being the subject of two complaints from Patient A.

Background

The first complaint was in relation to an exchange between Mr Reader and patient A, where Mr Reader used the word ‘Nigger’.  Patient A maintained that the ‘N’ word was used in a derisory and/or racist way to refer to his family members. Mr Reader maintained that it was used in the context of a discussion around rap music and the use of that word in rap music culture.

A second complaint was made six weeks later when patient A asked Mr Reader to provide a suitable knife to slice vegetables.  In handing the knife over to patient A, Mr Reader said ‘don’t do it’.  It became clear to him that patient A was offended and Mr Reader said words to the effect of ‘shit sense of humour’.

The CDHB addressed the matter on an informal basis and Mr Reader was required to write a letter of apology to patient A and undertake further training.  Mr Reader considered that the matter had been concluded.

However, Ms Kearney (another CDHB Manager) chose to re-investigate the matter after receiving a written complaint from Patient A. On 23 November 2015, Ms Kearney and Philip Patira (nurse consultant) interviewed both a witness to the first incident and Mr Reader.  Mr Patira also interviewed Patient A. At the end of the two hour interview, the CDHB took 15 minutes to consider the issues at hand and issued Mr Reader with a written warning based on a finding of serious misconduct. The decision was confirmed by a letter dated 24 September 2015. Mr Reader filed an unjustified disadvantage claim in the ERA.

Decision

The ERA were critical of the CDHB’s investigation and its disciplinary procedure, and in particular its manifest unfairness in the reinvestigation of the matter.  Mr Reader had essentially been subject to two separate investigations: an informal and formal investigation. The ERA found there was no evidence that the CDHB had given consideration to what had happened when the matter was dealt with informally. The ERA commented that the CDHB should have considered the earlier outcome and factored this into its consideration.

Further, although Mr Patira had interviewed Patient A, the ERA was critical that Ms Kearney, as the decision maker, had not spoken to or interviewed Patient A. Mr Crichton stated ‘I would have thought that when confronted with competing views of two significant incidents involving a professional staff member with a blameless record, the least that an investigator would do is to interview both protagonists’.

The ERA held that the CDHB had taken a ‘cursory’ approach, and commented that the decision had been made ‘on the spot without giving Mr Reader an opportunity for further input into the question of penalty’.  It was expected that ‘a large well-resourced employer with significant Human Resources capacity’ could have done more.

The ERA determined Mr Reader had a personal grievance and his warning was revoked.

Noteworthy points

The case demonstrates the ERA’s willingness to forensically examine a workplace investigation. The employer must consider and use the resources they have available and make a judgment as to how far an investigation should go. In some instances, and in particular in sensitive matters, instructing an external investigator may be appropriate. Where an employer has a contractual disciplinary process that includes an informal and formal process, the employer needs to be aware of the informal approach and take it into consideration when making a decision.

Time and time again there are employment law cases where the decision maker is not present or has not taken time to re-investigate matters. This case makes it clear that where there are credibility issues or the situation is not clear, the decision maker needs to interview the complainant to ascertain the situation at hand.

Here are some ‘take home’ points below for employers embarking on an investigation and/or disciplinary process:

  1. Take your time, don’t rush the decision;
  2. Allocate sensible resources to the investigation;
  3. Have the decision maker interview the complainant if there are significant differences in their version of events (he said/she said);
  4. Consider the employees explanation; and
  5. Before arriving at a decision allow the employee input into the question of penalty.

Reprinted with permission from law firm DLA Piper.

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