A recent decision in the Employment Relations Authority, Moke v Raukura Hauora o Tainui Trust, acts as a timely reminder to employers about appropriately managing investigation processes. Again, we also see the Authority’s willingness to weave tikanga and employment obligations together and make findings on how it should be engaged.

The need for a comprehensive investigation

While the defects in the investigation process were primarily the responsibility of the investigator, the ultimate duty to ensure that decisions are made based on all available information rests with the employer. The Authority found that the investigator’s decision to disregard potential witnesses nominated by Ms Moke, and to not interview them as part of the investigation, led to the Trust relying on inadequate information to make its decision. The Authority stated, “It was plainly inadequate, in that context, for an investigator to omit seeking potentially objective observations from Dr. Roche, an external party to the immediate working relationships, regarding what was said and how people behaved.”

The need for a timely investigation

Although it can be difficult to quantify exactly what “in a timely manner” might equate to, the Authority deemed that taking 66 weeks to conclude the process was unreasonable. While the Authority determined that one-third of the delays were due to Ms Moke’s interim injunction application and her availability for meetings, it was ultimately the Trust’s mismanagement through delays in responses by its lawyers and the investigator that caused the unreasonable delays.

The Authority’s findings serve as a reminder to employers about the importance of effectively managing communication with all parties involved and ensuring that information is provided to employees in a timely manner, giving them a fair opportunity to respond. Employers must also ensure that their chosen investigator has sufficient capacity to complete the investigation in a timely manner. Even if delays by the investigator are outside of the employer’s control, they will ultimately be held responsible for the investigator’s actions.

A process guided by tikanga

Ms Moke raised multiple claims of unjustified disadvantage, pointing to flaws in the Trust’s investigation process, including its failure to follow tikanga principles. Specifically, she highlighted the lack of hui-a-kanohi (face-to-face meetings) with her and her whānau, which she had requested, and failure to hold a poroporoaki in a suitable location at the end of Ms Moke’s employment, in circumstances where the commencement of her employment was marked with a pōwhiri at a marae.

The Authority found that it was reasonable for Ms Moke to expect any employment process led by the Trust to be guided by tikanga, especially since the Trust is a kaupapa Māori-led organisation. Tikanga principles were explicitly incorporated into her employment agreement, job description, and the Trust's policies. As we’ve discussed in our previous article , this case reinforces the point made in the GF v Comptroller of the New Zealand Customs Service decision that employers who integrate tikanga into their practices will be held accountable to it.

At the start of any employment investigation, employers should review their policies and relevant employment agreements to ensure the process aligns with what is outlined in those documents. When tikanga is a core part of an organisation’s operations, employers should also consider how to accommodate kanohi ki te kanohi (face-to-face) meetings and involve whānau where appropriate.

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Should you find yourself facing a complex investigation process, we would be happy to assist.

Special thanks to Solicitor, Ngahuia Muru for her assistance in writing this article.