PSPLA Workplace Investigation

Employment Investigators are required to have a licence

The Private Security Personnel Licensing Authority (PSPLA) is an Authority that was created under the Private Security Personnel and Private Investigators Act 2010. It's functions are that it issues licences and certificates of approval to people working in the security industry, and private investigators; holds a register of all licence holders; and has the ability to discipline if required.

A recent decision in the PSPLA has confirmed that those who are in business advertising and providing employment investigation services for valuable consideration need to either be a lawyer or hold a licence under the Act.

What about HR Consultants?

They can't get it from a Weet-Bix packet either

This now means that many Human Resource and employment experts (as they claim to be) are at risk of liability in breach of the Act. Simply, they should not be undertaking investigations without a licence, and many consultants are still doing so without proper training.

The end result is often damaging to the livelihood of employees where untrained or inexperienced Human Resource consultants continue to practice in undertaking employment investigations when they should not be.

The recent decision

D, E & C LIMITED [2020] NZPSLA 007.pdf

Dated 4 June 2020, the Authority made a decision addressing the issue of whether persons or companies carrying out workplace investigations for employers into employee conduct are carrying out private investigations and therefore they are required to hold a private investigator licence.

C Limited was contracted by A’s previous employer. A had complained about the investigation particularly as to how it was conducted and that the directors of C Limited who carried out the investigation should have been licensed as private investigators under the Act.

The investigation that was the subject of the complaint was one where:

• Witnesses involved participate in an interview where they would have a support person or legal representative support them.
• The employer would provide the investigator relevant evidence for the purposes of the investigation and the investigator can seek further information.
• The complainant and respondent that are subject of the investigation are given the opportunity to review and to comment on the evidence that the investigator collects.
• A final investigation report is drafted for which the complainant and respondent are given the opportunity to review and comment on.
• The final investigation report is provided to the employer which sets out the investigators opinion on whether factual allegations occurred and if so whether that conduct amounts to a breach of the employer’s relevant policies.

This decision was based on the interpretation of the law under the Act, particularly the meaning of a private investigator where the PSPLA accepted that employment investigations may not have been on parliament’s mind when the Act was passed.

As highlighted in bold in the Act as above, the key combination of ingredients are:

• Private Investigator
• Information
• Carries on any business
• (Additionally) Valuable consideration

The conclusion reached by PSPLA was that C Limited in carrying out the business of employment investigators and in its conducting a workplace investigation particularly with the collection of information relating to the complainant’s personal character, actions, or behaviour, therefore fell within the definition of a private investigator.

The directors of C Limited did not have a licence at the time of the investigation in question but had since became registered lawyers. At the time of the investigation the directors of C Limited would have been in breach of the Act as they did not fall within any of the exemptions of the Act. Such circumstances, particularly that the breach was unintentional, did not warrant any penalty against the directors despite the breach at the time.

The Authority was satisfied that registered lawyers being accountable under the Lawyers and Conveyancers Act 2006 are able to undertake workplace investigations given their ethical obligations to that Act.

A disciplinary meeting can amount to an investigation as recognised by this Act

It is notable that despite the length and obvious nature of the process being an "investigation" is not what defines a private investigator, any process no matter how small where personal information is collected and decided upon by a person or company holding themselves out to do workplace investigations and receives valuable consideration for doing so will be accountable to this Act.

Simply, an external Human Resource consultant receiving payment for having involvement in a disciplinary meeting, although not framed "investigation", where they ask the complainant or respondent questions and report and discuss conclusions with the employer has effectively ticked all of the above boxes in satisfying this section of the Act. A simple disciplinary meeting can still be considered as being an investigation, it is not what you call the process, it is what the process is in satisfying this section of the Act.

The bottom line is that external Human Resource consultants or workplace investigators that do not hold a licence and are not practising lawyers are unable to carry out employment investigations and if doing so they will be in breach of the Act.

Importantly, employers can carry out investigations internally or use law firms and individual lawyers that have practising certificates. Of course licence holders under the Act are suitable for this area of work.

As an employer, What should you be asking?

• What are their qualifications?
• Are they a lawyer or do they hold a licence under the Act?
• How long will the process take?
• What is the process?
• What are the fees, disbursements and other costs involved?
• Can I see a copy of the Terms of Engagement before proceeding?

Employers should be careful who they are engaging to undertake their employment investigation because the investigator's actions can potentially put the employer at risk of their employee raising a personal grievance.

What should an employee subject to an employment investigation be asking?

• Who is the investigator?
• Are they a lawyer or do they hold a licence under the Act?
• What are their qualifications?
• How long will the process take?
• What is the process?
• What will happen to the information that they are collecting?

If you have any other questions or concerns or need help then don't hesitate to get in contact with us!

Download File