When we think of a Private Investigator, it is easy for our minds to think of Magnum PI complete with Hawaiian shirt, bushy moustache and red corvette, or, depending on your age, perhaps even Scooby Doo! Not many people will think of external independent employment investigators, which many organisations have come to engage when complex allegations are raised or where the allegation is best handled in an independent manner.
Even less well known is that independent workplace investigations must be conducted by a licenced private investigator.
In 2020, the Private Security Personnel Licensing Authority (“Licensing Authority”) confirmed in a decision that external workplace investigators are part of the legislated category of investigators that are required to hold a licence as a private investigator. The decision came after an employee made a complaint that the external investigator was not qualified or experienced enough to conduct an investigation into the allegation made about the employee. In that case, they decided not to prosecute the individual, noting that it was unintentional given the widespread misconception that employment investigators are not private investigators.
Two years later, we are still seeing employment investigations conducted by individuals and organisations who are not compliant with their legal requirements as they are not licensed private investigators . This year, we again saw a decision from the Licensing Authority after an investigator’s competency and qualifications were questioned due to not holding a licence as a private investigator. The Licensing Authority again confirmed that the investigator should have been licensed and warned that if it was to occur again, they would likely be prosecuted.
This is a timely reminder as we are seeing an increasing amount of organisations choosing to engage in external investigations. The Licensing Authority considers that it is now “best practice for employers to engage a specialist third party to undertake independent employment investigations”.
Not only is the unlicensed investigator putting themselves at risk of prosecution, the employer is also potentially at risk if they rely on the outcome of an investigation conducted by a unlicensed investigator in making a decision. The results of investigations are frequently relied upon to determine what the appropriate next steps when there have been serious allegations made against an employee. This could include whether or not to proceed to a disciplinary process. For this reason, it’s important the investigation has been conducted by someone with the appropriate skill, experience and is licensed as a private investigator to ensure the investigation is robust and can be relied upon.
Engaging a licensed investigator has many benefits for both parties, including:
- greatly reduced the risk of any perceived bias or predetermination.
- All parties are respected and procedural fairness is followed.
- The outcome of the investigation is more likely to stand up to scrutiny.
- Being able to utilise the investigator’s significant investigation and interviewing experience.
At Three60 Consult, five of our team members hold private investigator licenses through the Licensing Authority. You are able to have an investigator whose skill-set and experience is best suited to the situation. We have a very experienced team with a diverse skill set which includes investigation into criminal misconduct, fraud and employment misconduct. You can read more about our investigators here: https://www.three60consult.co.nz/services/investigations/
By Kim James, Business Partner