More demand for workplace investigators as investigations on the rise
Much has been happening in the employment law space of late, not the least of which is a greater awareness of workplace culture issues and challenges in a wide variety of sectors.
We can no doubt all call to mind a number of examples of workplace incidents over the past year – both in New Zealand and overseas. And this in turn is giving rise to another increasingly prevalent aspect of employment law – investigations into workplace issues, conducted by lawyer or non-lawyer investigators.
Graeme Colgan has recently returned to the employment law bar after 28 years on the bench, and is now practising as a barrister specialising in employment law, with a particular interest in the expanding field of workplace investigations.
“When I came back into practice just over a year ago, workplace investigations were already a developing feature, and it seemed like a natural fit for me as an employment barrister to become involved in this kind of work,” he says.
He describes workplace investigations as “a fairly recent phenomenon” – here in New Zealand at least – often prompted by allegations of bullying or harassment at a workplace, or where an individual brings a personal grievance which brings to light broader concerns about bullying or harassment across an organisation and affecting its culture.
While employers still have to work through any personal grievances in the usual way, the appointment of an investigator to inquire into allegations or issues raised is becoming an increasingly utilised parallel measure. Sometimes, such an investigation can be undertaken in-house, but increasingly, there are good reasons to bring in an independent outsider. Not only does this enable an employer to show staff, customers and (in many cases) the public that issues are being acknowledged and taken seriously, but, in comparison to wending your way through a long-winded and highly public court process, an independent investigation can be a better way of addressing wider, corrosive influences in the workplace.
Often, those called in to conduct such an investigation are employment lawyers. While this might seem like a logical fit due to their background and experience in workplace issues, the skills a good workplace investigator should possess – such as the ability to investigate, interview numerous parties, and write reports – are not necessarily ones employment lawyers would traditionally or naturally have, says Mr Colgan.
To date, while the number of local lawyers doing this kind of work is on the increase, a cohesive system of training and promoting collegiality amongst workplace investigators has been slow to get off the ground. And, while there is no restriction on who can be appointed as a workplace investigator, some form of qualification and training are obviously desirable to be able to carry out the task professionally.
Our cousins in North America are ahead of us in this regard, with the Association of Workplace Investigators (AWI) having been established many years ago in California, where investigations are a long-standing feature of the workplace.
Although originally an American body, AWI now has Canadian and Australasian subsidiaries. AWI trains both in-house and external lawyer investigators, as well as private investigators, who undertake employment investigations.
Mr Colgan has recently undertaken the AWI programme of training, saying he was “easily persuaded” to undertake a course in Canada last month, and was encouraged to see that seven of the 65 or so trainees were New Zealanders.
“Having more lawyers properly trained to do this work not only allows them to be able to better market themselves as professional investigators, but also means there will be qualified lawyers available to quickly pick up on and begin investigations where employers are wanting prompt action.”
And while he estimates that around 25 or more New Zealand lawyers are now AWI-qualified and operating in the country’s main centres, he is very keen to see more interaction and sharing of ideas and experience amongst workplace investigators and those interested in workplace investigation here. In particular, he would like to explore the possibility of generating interest amongst and gathering together Auckland practitioners, enabling them to meet informally to discuss and learn.
“I would like to start a process where Auckland lawyers who are doing or who are interested in workplace investigations, or those who are asked to arrange for independent investigators to come in to a workplace, can get together to foster collegiality and discuss common issues,” he says.
A get-together of Auckland-based workplace investigators and other interested practitioners is being planned for Wednesday 26 September 2018 (5:30pm arrival for 6pm start) at the EMA Northern’s offices in Khyber Pass Road, Grafton, Auckland, with a view to establishing more regular gatherings. Anyone wishing to attend, or wanting to receive details of any further initiatives in this area, should contact Graeme Colgan by email at firstname.lastname@example.org.