Various NZPFU members have been reporting receiving emails containing a “lawful directive” to participate in employment investigations. The implication of the email is that those that refuse to participate may be subject to disciplinary action themselves for failing to comply with the “directive”.
These emails have been sent to various employees in the workplace that are not the complainant or the accused. Some of the employees have previously responded to external investigators declining the request to be interviewed, with some stating they have no involvement in the matter and nothing to provide to the investigation. This has prompted further emails from the external investigator followed up by an email from the Region Manager containing the following:
“As your employer, Fire and Emergency requires you to assist [the investigator] with her enquiries to the best of your abilities, if you are asked by her to do so. Fire and Emergency consider this to be a lawful direction.”
We have raised this issue with the CEO Kerry Gregory and DCE People Janine Hearn today to have the “direction” to participate withdrawn and to apologise for the stress and harm caused.
We advise members of the following:
- Employees are required to carry out what are known as lawful and reasonable instructions. This has three aspects, not two. The instruction must be lawful in the sense that it does not require illegality. It must be reasonable in the sense that it does not require anything irrational. Finally, it must require the employee to do something within the scope of the employee’s contractual obligations.
- There is therefore no requirement to participate in an employment investigation.
- If you are not the accused there is no requirement for you to participate, and it may not be in your interests to do so. You may wish to seek advice. If you don’t want to be involved you can respond stating you do not wish to participate.
- If you receive correspondence detailing allegations against you please contact the NZPFU for advice before responding. The appropriate response will depend on the circumstances.
- If you are making a complaint please be aware you may not have any control over the scope and nature of the investigation. This is not to deter complaints but to ensure members are well aware of the current processes. We have had members who have raised issues and specifically stated they just want their issues resolved by their direct management in their workplace, but this has not occurred. Generally management send all complaints to the Behaviour and Conduct Officer (BCO) which often appoints external investigators who, in our experience, try to involve other employees regardless of whether they were present when the complained behaviours or events occurred.
The conduct of employment investigations has been an ongoing issue for years.
We remind members of our advice in April 2021 that it was not in your interests to engage or participate with the Behaviour and Conduct Office https://www.nzpfu.org.nz/news/nzpfu-advises-members-not-to-engage-or-participate-with-behaviour-and-conduct-office/ due to the shambolic structure and failure to adhere to the most basic principles of procedural justice. The BCO has gone through various iterations and now is being restructured with all investigations to be conducted by an external provider. The BCO has been using various external providers for some time and in our experience that has not resolved the serious issues around the conduct of the investigations.
It is our experience that the investigators do not limit the investigation into the specific events or incidents complained of.
Instead, they throw the net wide and often involve almost the whole workplace – whether or not the employees were present or witnessed the behaviour complained of, or want to be involved. These employees are still called “witnesses” and are often asked to provide their opinions even if they were not present or have no evidence relevant to the complaints. This includes being asked their opinions of the people and personalities involved. That causes widespread harm in the workplace as members report they feel they are required to go further than they are comfortable with, and appear to be taking sides. This process erodes confidentiality as many people are informed of the issues and statements made by others (not just the complainant or accused) for their feedback. Again, regardless of whether the person was present, or observed any of the behaviours complained of.
This results in a lengthy and stressful process for the complainants, the accused and often others in the workplace. It must also increase the costs significantly as interviews are conducted, transcribed, the investigator goes back and forth to those involved to put statements made back to them for clarification or response, draft reports are distributed, and then final reports determined which is then provided to the decision-maker. This can take years.
As a result, regardless of the seriousness of the complaint or the outcome, the fact someone was subject to an investigation is widely known, and the accused is tainted with that knowledge which erodes their reputation, confidence, affects how that they feel they are viewed. The complainant is also known, and the process can have just as damaging impact on them and their standing in the workplace. The investigation process can cause a split in the workplace that did not exist previously. We know of cases where the investigation caused more widespread harm than the behaviours complained of.
We have also raised the issue of confidentiality of the information provided with FENZ.
Regardless of whether someone participated voluntarily or felt coerced to participate in an investigation, and regardless of whether they had any direct knowledge of the events/behaviours complained of, FENZ recently determined that all information, including transcripts of interviews, could be released to those involved in the investigation. Those that participated were of the understanding only the accused would have access to all information in order to have a genuine opportunity to respond to the matters being considered (which is necessary for procedural fairness). If the provision of that information occurs there is no control over who accesses that information or what it is used for. This will only erode employment relationships further and place “witnesses” at risk of retaliation or ongoing complaints themselves, particularly if comments have been made about a manager.
FENZ has put that on-hold release of information to those other than the accused pending advice on the issue.
Currently, all of these matters are being considered by FENZ, and we will notify members of any outcome.