: September 9 | Auckland: September 16

Facilitated by Simpson Grierson Lawyers and held in conjunction with the HR Law Masterclass NZ conference, this pre-conference workshop will help unravel complexities of investigations.

Registration and welcome coffee 

Course duration: 9.00 am – 4.30 pm, including networking breaks    
Procedural fairness and the statutory 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   
  • Review 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 
  • Suspension  
  • Identifying an investigator – internal or external?  
  • Legal professional privilege 
  • Ascertaining the purpose and scope of the investigation 
  • Timeframes for investigations 

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 maintaining 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 
  • Evaluating the evidence   
  • Dealing with conflicting evidence  
  • Tips on how to make well-reasoned findings of fact, assessments of credibility and determining whether factual findings meet relevant 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? Is it legally privileged?  
  • 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

Wellington: September 10 | Christchurch: September 12 | Auckland: September 17



Includes discussion about implications of potential outcomes of the Employment Relations (Triangular Employment) Amendment Bill, and an overview of key issues or trends which have emerged following introduction of the new laws in May.


  • Your good faith bargaining obligations, and practical hints for overcoming roadblocks to ratifying agreements 
  • Meeting the requirement to conclude bargaining to completion
  • Removal of the MECA /  Multi-Employer Collective Agreement opt out
  • Ensuring options for communicating direct with employees about the bargaining process
  • Meeting requirements under restoration of the 30 day rule 
  • Understanding expanded union rights – what this means for you, including when access permission is required
  • Passing on terms of collective agreements to non-union members – when is it unlawful or unlawful?
  • Reviewing bargaining processes for Fair Pay Agreements


  • Ensuring Holidays Act and payroll systems compliance - Understanding where the issues are 
    • Parental leave, related special leave entitlements and partner’s leave
    • Understand changes to Primary Carers’ leave coming in 2020
    • ‘Keep in touch’ days – understanding changes and staying within restrictions 
    • Redundancies, continuous employment, and parental leave – the guidelines

  • Domestic and family violence leave 
    • Privacy considerations for you to adopt
    • Understanding entitlements for leave, flexibility requests

  • Pay parity and pay equity
    • Understanding key provisions and progress of the Equal Pay Amendment Bill
    • Current frameworks and practices to adopt to mitigate future claims risks
    • Could you be under-paying people? Which industries could be at risk? How would comparative values for comparable roles be determined?



  • Understanding when reinstatement may be a primary remedy for an unjustified dismissal claim
  • Common pitfalls and when liabilities related to terminations emerge 
    • Allowing for response by the employee
    • During performance improvement/ performance management
    • Terminations for reasons of absences: when an employer can terminate employment 
  • Terminations during trial periods, probationary periods, and following restrictions to the use of trial periods 
  • Strengthening your disciplinary and termination process
  • Meeting requirements under heightened tests for redundancy 
  • Recent case law and remedies review


  • Conduct expectations in policies - getting the right level of detail and how to communicate policies
  • Approaching challenging conversations about unacceptable behaviour 
  • Laying foundations with operational team managers on recognising risks, escalating issues, and managing conflict 
  • Responding to different behavioural or misconduct issues - determining reasonable management actions
  • When actions could be perceived as harsh, unjust or unreasonable - Meeting the test for substantive justification
  • Recent case law reviews



  • Sexual harassment:
    • Not on your Watch! Identifying risks and red flags in your organisation, and risk management approaches you can adopt 
    • How behaviour is perceived versus a perpetrator’s ‘intentions’
  • Bullying:
    • Understanding risks and common triggers for bullying complaints
    • Incidences vs incidents: assessing if a bullying complaint should be treated as such
    • When “reasonable management actions” are challenged in a bullying claim
    • When the manager is bullied – how to act
  • Policies, response and case law: 
    • Having good reporting and grievance management systems in place
    • Assessing complaints, when you should investigate, and your duty to both parties
    • What can happen if you ignore complaints, or don’t effectively deal with them – lessons from other employers
    • When WorkSafe, the Employment Relations Authority or other agencies may get involved, and how
    • Provisions and actions under the Human Rights Act and the Employment Relations Act


  • Analyse typical performance management processes and pathways you may face
  • Ensuring adequate performance improvement processes  
  • When should you halt a PIP?
  • What can give rise to mental health risks and related medical incapacity issues?
  • Minimising performance management or improvement process risks which could lead to claims of: bullying or harassment; unjustified disadvantage; unjustified dismissal; or constructive dismissal
  • Investigating the consequences of poorly managed PIPs
  • Case law reviews based to get processes right



  • Evaluating heightened organisational risks around workplace mental health issues
  • Meeting increased expectations and obligations for mental health issues prevention as an employer
  • Monitoring your workplace environment for mental health risks and triggers
  • Assessing complexities around different circumstances
  • Safeguards, controls for stress or anxiety, and your duty of care – measures you can introduce
  • Devising pre-employment questions without crossing the line – assessing stress management and resilience levels of candidates
  • Understanding Worksafe’s areas of increased focus for health and mental wellness
  • Pointers for having conversations with employees about mental health concerns, and overcoming disclosure issues


  • Working with medical experts – what kind of advice do you need? 
  • Timeframes – how long does the incapacity need to last before you can take action? 
  • Processes – what must you do; what should you do? 
  • Guidelines for tailoring return-to-work programs, and adjusting position requirements
  • Recent case law reviews – reduce liabilities and improve outcomes