Agenda

6th Annual Conducting Effective Workplace Investigations Workshop New Zealand

Planning and managing effective workshop investigations 

AUCKLAND (now via live-stream): MONDAY 21 SEPTEMBER 2020 
WELLINGTON: WEDNESDAY 23 SEPTEMBER 2020
 
** Due to the COVID-19 health risk in Auckland, the Workplace Investigations Workshop scheduled in Auckland will now be a fully virtual ONLINE workshop**   
 
Registration: 8:30am | Course duration: 9am - 4:30pm, including networking breaks  
 
When allegations of sexual or racial harassment, discrimination, bullying or other serious wrongdoing or incompatibility are made, a timely and robust investigation by an experience investigator is key to achieving a fair resolution for all parties involved. 
 
This workshop will take an in-depth look at unique factors influencing investigations - the seriousness of allegations, complexities of complaints, and consequences of failing to investigate. Then, how do you conduct an investigation, determine scope, ensure appropriate terms of reference are defined and adhered to, and set expectations of people involved in investigation processes. Additionally you, as the investigator, need to ensure the investigation is procedurally fair, that independence is assured, that there is transparency, standards of proof, and that evidence is dealt with appropriately.
 
Be sure to attend this workshop Workplace Investigations Masterclass - an interactive training course which will help you unravel the complexities of workplace investigations.  
 

Agenda


PLANNING AND PREPARING FOR THE INVESTIGATION 
 
Procedural fairness and the regulatory framework 
  • Ensuring procedural fairness, independence, transparency, and standards of proof
  • Gain an overview of the practical implications of key legislation (including the Employment Relations Act, Human Rights Act, Privacy Act, Health and Safety at Work Act, Protected Disclosures Act and Harmful Digital Communications Act 2015)
Preliminary issues to consider 
  • Reviewing 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 
  • Identifying an investigator - internal or external?
  • Legal professional privilege 
  • Ascertaining the purpose and scope of the investigation 
  • Timeframe 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 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 outcomes  
FINALISING THE INVESTIGATION AND NEXT STEPS 
  • Evaluating the evidence
  • Dealing with the evidence 
  • Tips on how to make well-reasoned findings of fact, assessments of credibility and determining whether factual findings meet relevant legal 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?
  • 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 
 
 
This training is facilitated by: Mike Mercer, Senior Solicitor, Simpson Grierson 
 
Mike is a senior member of Simpson Grierson’s employment law team. He has experience advising on a broad range of issues which can lead to workplace investigations – including disciplinary and performance matters, allegations of sexual harassment and bullying and other workplace conduct and culture issues. Mike provides timely, commercial and pragmatic advice on employment law issues to Simpson Grierson’s clients in a range of sectors.  

AUCKLAND (NOW ONLINE): TUESDAY 22ND SEPTEMBER   |   WELLINGTON: THURSDAY 24TH SEPTEMBER 2020
 
** Due to the COVID-19 health risk in Auckland, the HR Law Masterclass scheduled in Auckland will now be a fully virtual ONLINE masterclass**    

08:20

08:50

What changes to employment relations policies may mean if we see a return to a National led Government? If a Labour led Government is returned, what may be their ongoing priorities?

09:10

 

The evolving workplace: 
  • Identifying evolving HR and organisational risk exposures 
  • Addressing evolving expectations around corporate culture
  • Proactively improving accountability in your organisation to reduce accessorial liabilities
  • Recent case examples and how they could have been avoided

Pay Equity:

  • Understanding developments resulting from the Equal Pay Amendment Bill
  • Could you be under-paying people? Which industries could be at risk?

Contractors, and the gig economy:

  • Understand changes to protections for contractors being slated
  • Are you correctly classifying contractors?
    - What are the grey areas between contractors and employees?
    - What is meant by a “dependent contractor”? a hybrid between an employee and an independent contractor?
    - What benefits and protections would a “dependent contractor” receive
  • Reviewing recent case law testing the gig economy model 

09:50

  • Recognising psychosocial hazards, triggers and risks in the workplace
  • Assessing reasonable workloads and stress triggers
  • Shifting to a holistic approach to factors influencing workplace mental health and minimising psychosocial risks
  • Meeting obligations under legislations: The Employment Relations act; The Human Rights Act; The Health and Safety at Work Act
  • When to support rehabilitation and return-to-work following psychological injury
  • Seeking medical advice to understand a condition and liaising with medical experts
  • Reviewing recent case law

10:30

11:00

  • Exploring ways to address drivers of behaviour 
  • Approaching informal chats and challenging conversations about behaviour: protocols, and setting the scene
  • Selecting the appropriate process for conduct for misconduct and avoiding misclassification of conduct or performance issues
  • When are you entitled to act on behavior outside of work? What sort of behavior is deemed to have a direct impact on your organisation?
  • Looking at what constitutes misconduct on social media
  • Requirements of a discipline meeting: what you have to disclose, setting expectations, communicating potential outcomes, and pitfalls to avoid
  • Avoiding the common mistakes made by employers during disciplinary processes
  • Reviewing recent case decisions

11:40

  • Understanding legislations covering bullying and sexual harassment: The ERA; Human Rights Act; Protected Disclosures Act; plus guidelines from the ACC, WorkSafe and State Services Commission
  • Being proactive, thereby reducing vicarious liabilities, and instigating different ways for employees to report bullying, harassment or sexual harassment
  • Understanding key aspects and relevance of the Protected Disclosures Act
  • Managing a complaint formally or informally? Looking at factors to influence your approach, and assessing the seriousness of an allegation
  • Responding to requests for anonymity
  • Balancing the interests of the complainant and other parties involved, and managing their expectations
  • Analysing recent case decisions and remedies

12:20

01:10

  • Measuring performance, and designing sound performance improvement processes  
  • When should you start and when should you halt a PIP?
  • Dealing with mental health risks and related medical incapacity issues
  • How to be more accommodating in performance management processes, when you’ve been made aware of mental health related issues
  • Minimising process risks which could lead to legal claims 
  • Managing risks of constructive dismissal claims or personal grievance claims resulting from performance processes
  • Managing terminations, and ensuring substantive justification
  • Case law examples 

01:50

If the Cannabis referendum passes, plus managing alcohol issues

Cannabis:

  • Navigating the grey areas of impairment versus usage
    - What are the thresholds to consider for testing?
    - Under what circumstances could your policy be challenged?
  • Do you need to update your policies?
  • Learning from experiences in the US and Canada, following legalisation, and how they are approaching impairment testing

Alcohol, and drugs in general:

  • Drawing the line between what an employee does in their own time, and how that impacts their ability to be safe and productive at work
  • Handling a situation where an employee refuses a test, and obtaining independent medical examinations
  • Drugs, alcohol and your policies:
    - Is there a place for zero tolerance policies?
    - Should you be treating prescription or other medications, marijuana and alcohol usage different?
  • When can you conduct tests, and how you should handle it? For pre-employment, and in-employment
  • Avoiding being overly-prescriptive for roles which are not safety sensitive
  • Can an employee refuse a test, and can this be grounds for disciplinary action?
  • Case law reviews

02:30

02:55

  • Understanding how amendments to the Privacy Act relate employee information
  • Collection, use and disclosure of personal data: ensuring relevance of personal information collected; and ensuring reasonable safeguards for personal information
  • Can an employer lawfully request biometric data? Can an employee refuse? 
  • Monitoring technologies – when are you crossing the line?
  • GPS tracking of vehicles which are used for work and private purposes – looking at potential privacy issues and safeguards
  • AI for recruitment – removing potential for bias: through managing criteria entered; and looking at use of AI for video interviews, when it may reveal an applicant’s emotional state

03:35

  • Ensuring redundancy used in the correct context – not as a ‘quick fix’ to resolve other issues
  • Ensuring a full and fair consultation process for a restructure or redundancy
  • Managing restructures and redundancies for employees on parental or negotiated carer leave
  • Have you exhausted all other options, such as redeployment? 
  • What are the guidelines on offering alternative positions? What if the employee declines the offer of an alternative position?
  • Demonstrating to a court that a restructure or redundancy is genuine, fair and reasonable 
  • Review case laws where a redundancy has been challenged by an employee 

04:15

The Holidays Act: 

  • Common areas of non-compliance
  • Discretionary payments and short term incentive schemes
  • Managing and responding to Holidays Act non-compliance, for current and past employees

 

The Employment Relations (Triangular Employment) Amendment Act:

  • Understanding the implications for employers who use third party labour, whether on a temporary or long-term basis
  • Understanding the processes and steps before a controlling third party can be joined in a personal grievance proceeding
  • Managing grievance claims brought under the new legislation

 

Flexibility provisions:

  • Legal framework
  • Understanding flexibility provisions for persons affected by Family Violence Act
  • Options for responding to requests for flexible working

04:55