Waikato Business News October/November 2020

WAIKATO BUSINESS NEWS October/November 2020
27
Illegal workplace investigations
coming to an end
In the October 2018 edition of the Waikato Business News,
I wrote a piece on the disturbing rise in a cottage industry of
“experts” involved in workplace investigations.
EMPLOYMENT LAW
> BY ERIN BURKE
Employment lawyer and director at Practica Legal
Email: erin@practicalegal.co.nz phone: 027 459 3375
On the ground, I was
increasingly encountering
these people, regularly
promoting the need for a
workplace-wide investigation
(often where no such action
was required) and many of
these investigations were coming
with a five-figure price tag
attached. The quality of some
of these investigations was
dubious, and particularly when
the investigator was being
engaged by a large employer,
where there was the potential
for future work, the impartiality
of the investigator was also
questionable.
While there are circumstance
where a workplace-wide
investigation might be appropriate,
they were increasingly
being advocated for in cases
where there were complaints
only involving one or two
employees, and the benefits
of any investigation needs to
be carefully weighed against
the disruption and disharmony
such investigations can invoke.
In June 2020, a rather interesting
determination was published
by the Private Security
Personnel Licensing Authority
(‘PSPLA’): Re D, E & C
Limited [2020] NZPSLA007.
The issue for determination
by the PSPLA, was whether
workplace investigations came
under the Private Security Personnel
and Private Investigations
Act 2010 (‘PSPPI Act’),
and whether those carrying
out these investigations fitted
within the s 5 definition of the
PSPPI Act of “private investigators”.
Spoiler alert – turns
out they do.
Section 5 of the PSPPI Act
defines a private investigator
as “a person who, for valuable
consideration, either by
himself or herself or in partnership
with any other person,
carries on a business seeking
or obtaining for any person or
supplying to any person any
information described in subsection
(2).” The latter defines
information as that relating to
the personal character, actions,
behaviour, financial, occupation
or business, location or
identity of any person.
Persons captured by the s
5 definition are required to be
licensed as private investigators.
Ms D and Ms E were
both directors of company
C Limited, which was in
the business of carrying out
workplace investigations. Following
one such investigation,
an employee, Ms A, complained
to the PSPLA about the
quality of the investigation and
argued that Mss D and E were
private investigators covered
by the Act.
C Limited argued that Parliament
had never intended
for the PSPPI Act to cover
employment consultants and
workplace investigations.
Whilst acknowledging Parliament
had not expressly
included workplace investigations,
the PSPLA stated that
this was because it was a relatively
new phenomenon, but
that the actions involved in
these investigations were still
captured by s 5.
C Limited also argued that
the word “private” in the term
private investigator implied
covert surveillance or an
invasion of privacy, and that
workplace investigations do
not involve these actions. This
was rejected by the PSPLA,
who noted that the s 5 definition
of private investigator
did not include reference to
covert or privacy invasion
issues, and held that the word
private merely distinguished
private investigators from public
investigators, such as the
police or inland revenue.
Finally, the PSPLA investigated
whether Mss D, E
and C Limited were covered
by any of the exemptions
set out in ss 5(4) or 22 of the
PSPPI Act. Section 22 allows
exemptions from holding a
licence if an investigator holds
a practising certificate required
by any other enactment. This
would, for example, cover lawyers
and chartered accountants
when engaged in workplace
investigations or financial
investigations, respectively.
The rationale behind this
exemption is that the training
for such persons is significantly
more than that required
by private investigators, and
the regulatory regime/disciplinary
processes in place are
stricter, meaning the public are
protected. At the time of the
complained-about investigation,
neither Mss D or E held
a practicing certificate, but
following the investigation,
they both started their own law
firm and did hold practicing
certificates. The PSPLA held
that Mss D and E had breached
the PSPPI Act at the time of
Ms A’s investigation, but as
they did not hold any licence
as required by the PSPPI Act,
then no action could be taken
against them for this breach.
As registered lawyers, they are
now able to carry out workplace
investigations and will
be covered by the New Zealand
Law Society regulatory
and disciplinary framework.
Since this case came out
in June 2020, there appears to
have been a flurry of applications
to the PSPLA for licences,
to enable non-lawyer investigators
to continue to carry
out workplace investigations.
While it is not anticipated that
this will either increase the
quality of these investigations,
or decrease the fees being
charged, clients will at least
have a regulatory body to complain
to where the conduct or
competency of the investigator
comes into question.
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