Workplace Investigations – some key points

26 June 2024

The recent case of Jane Kitto and APL Kwikform Pty Limited [2024] NZERA 75 clarifies some interesting points about workplace investigations. 

Ms Kitto raised a bullying complaint against another employee.  She went on special leave and the company engaged an independent workplace investigator to enquire into the matter.

Ms Kitto later resigned and claimed constructive dismissal.

Ms Kitto raised four disadvantage claims.

First Claim

Ms Kitto claimed the delay in appointing an investigator disadvantaged her.  There was a period of some 14 days between receiving Ms Kitto’s complaint and Kwikform taking specific action to hire an outside investigator.

There were genuine reasons for the delay due to people travelling and not being available. The Authority found that it was hard to see how Kwikform could realistically have achieved this in a shorter time and added it is also hard to see how this short period of time, during which Kwikform was actively taking steps to progress Ms Kitto’s complaint by informing leadership and hiring appropriate resources to act on it, could amount to a disadvantage in any term of Ms Kitto’s employment.  Kwikform took Ms Kitto’s complaint seriously and the short period of time it took to hire an investigator was not a disadvantage to Ms Kitto.  

Given the particular circumstances of Kwikform at the time, a delay of 14 days was considered to be reasonable.

Second Claim

This claim arose because Kwikform had disclosed to the respondent employee, that Ms Kitto was the whistle-blower.  

By this stage, Ms Kitto had rejected the attempts by Kwikform to negotiate her return to work in some agreed form.  She had decided she did not want to return to the workplace with the respondent in it, and was in the process of seeking other employment. 

The Authority accepted Ms Kitto felt genuine concern over the idea that her employer had not kept her identity confidential, even if this was mistaken.  However, it was not accepted that she suffered any disadvantage in her employment as there was no change to her employment status, and Kwikform’s actions in response to her expressed concern were unjustified.  

Third Claim

This is a claim that Kwikform should have ordered Ms Kitto’s colleague to speak to the investigator, despite that colleague’s objections to doing so.

However, by the time Ms Kitto raised this issue with the investigator on 22 July 2022, Ms Kitto had already resigned her employment.  This means that Kwikform’s decision about whether or not to order the colleague to attend the investigator could not have any disadvantageous impact on Ms Kitto’s employment, because she was no longer in an employment relationship with Kwikform.  

More fundamentally, the Authority did not consider that there was an absolute obligation on Kwikform to direct or require one of its employees (who was not a party to the complaint) to attend the investigator.

Fourth Claim

This is a claim that Ms Kitto should have been consulted about the report once finalised and what steps Kwikform should have taken next, despite her no longer being an employee.  

The Authority was not persuaded that Kwikform was required to consult with Ms Kitto about what steps Kwikform would take as a result of the report, after Ms Kitto had left the workplace.  Ms Kitto’s employment relationship with Kwikform ended on 19 July 2022.  Kwikform’s decisions as to what to do as a result of that report from 10 August onwards cannot have had an adverse impact on Ms Kitto’s terms and conditions of employment as she was no longer in an employment relationship with Kwikform.  

There is no obligation on an employer to consult with former employees about how it deals with its current employees.  In addition, there was no particular indication from Kwikform that Ms Kitto would have been consulted about what actions Kwikform were to take as a result of the report at all, even if she had remained in employment.  This was not part of the terms of reference, and had not been discussed between the parties.  

Constructive Dismissal Claim

Ms Kitto raised a claim that she was constructively dismissed.  This is said to be because there were breaches of duty by Kwikform that caused her to resign.  Those breaches of duty are the first, second, and third disadvantage grievances.  

For there to be a constructive dismissal, there must not only be a breach of duty by the employer, but also the breach must be of such a nature as to make the employee’s resignation reasonably foreseeable.

Not every breach of contract will lead to constructive dismissal.  There must be “a breach of a sufficiently serious nature to bring a reasonable employee to the conclusion that the employer does not intend to be bound by the contract and, therefore, cannot be relied upon to perform it fully or consistently in the future”.

Overall, the Authority found there was no breach of duty on the part of the employer, or any conduct that was sufficiently serious to make Ms Kitto’s resignation reasonably foreseeable.  Her claim of constructive dismissal is not made out. 

No remedies were awarded.  

Key Points

1. In this case a delay of 14 days in appointing an investigator was not considered to be to the employee’s disadvantage.
   
   
2. While the employee was concerned that her identity had not been kept confidential, she had not suffered any disadvantage in her employment as there was no change to her employment status, and the employer’s actions in response to her expressed concern were unjustified. 
    
3. There was no obligation on the employer to direct or require one of its employees (who was not a party to the complaint) to attend the investigator.
   
   
4. There is no obligation on an employer to consult with former employees about how it deals with its current employees.  In addition, there was no particular indication from Kwikform that Ms Kitto would have been consulted about what actions Kwikform were to take as a result of the report at all, even if she had remained in employment.  This was not part of the terms of reference, and had not been discussed between the parties.  

Contact us for further support on employment investigations: Justine O’Connell 021 920 410, Michelle Battersby 021 993 735, Tony Teesdale 021 920 323, or Esther Cohen-Goh 021 178 4111.