Reporting is only required where an allegation of misconduct or serious misconduct leads to an employment investigation.
The Public Service Act 2020 requires organisations to report “the outcomes of investigations into alleged misconduct or serious misconduct”. Reporting is therefore triggered by the commencement of an employment investigation or process, not by the receipt of allegations or information alone.
An allegation of misconduct or serious misconduct may arise from a complaint (including from another employee or member of the public) or from an employer becoming aware of information that suggests misconduct or serious misconduct may have occurred (for example, by reviewing financial records or system logs).
Definition of misconduct and serious misconduct
Organisations have discretion to determine what constitutes misconduct and serious misconduct within their organisation, based on their organisation’s context and policies.
The Employment New Zealand website advises that misconduct is generally considered serious if the employee’s behaviour has undermined or destroyed their employer’s trust in them and impacted the employee’s ability to do their job.
Misconduct – Employment New Zealand
What constitutes an employment investigation for reporting purposes
For reporting purposes, “investigation” refers to an employment investigation or processes undertaken in response to an allegation of misconduct or serious misconduct. An employment investigation is a purposeful and structured process undertaken to establish the facts of a matter. It occurs within an employment framework, is likely to involve human resources expertise from within the organisation or an independent investigator, and goes beyond routine supervision or immediate corrective action by a manager.
An investigation may be simple or complex depending on the situation. Even if an investigation concludes quickly, for example, because all parties agree what happened, it is still an employment investigation and must be recorded in agency reporting.
More information about employment investigations can be found on the Employment New Zealand website.
Investigations – Employment New Zealand
Investigations outside of scope
Investigations undertaken outside an employment framework and primarily for other purposes are not within scope for reporting. This includes audits, security investigations and investigations by statutory oversight bodies (for example the Office of the Ombudsman).
Where a non-employment investigation identifies information suggesting potential misconduct or serious misconduct by an employee, and this results in a separate employment investigation, the employment investigation is within scope of reporting and must be reported once concluded.
Out of scope for reporting – routine management and employee performance
Routine management and supervision of staff should not be included in reporting. Minor behavioural issues (for example one-off lateness or inappropriate language) that are dealt with by managers at the time the issue occurs and do not involve an employment investigation do not need to be reported.
Performance issues related to how well an employee is meeting the expectations of their role (including productivity, timeliness and quality of work) are also out of scope, even where they result in performance-related employment outcomes for the employee. Performance issues relate to capability rather than conduct and will usually be managed through performance plans, coaching or development discussions.
Where an issue is initially managed as a performance matter, but later information indicates potential misconduct or serious misconduct may have occurred and an employment investigation is commenced, the misconduct related employment investigation is within scope for reporting.
Out of scope for reporting – initial assessment of allegations or information
Organisations may undertake an initial assessment of information of an allegation to determine whether it is credible, could relate to misconduct or serious misconduct, and warrants an employment investigation. An initial assessment or triage of an allegation of misconduct or serious misconduct is not within scope of reporting. If an initial assessment results in an employment investigation this is within scope of reporting.
Reporting is still required where an investigation ceases and no findings are made
In some circumstances, an investigation may cease before any findings are made. In these cases, the outcome should be recorded as “Investigation ceased and no findings made” and the reason for this briefly noted.
Reporting is still required when an employee resigns during an employment investigation
The Workforce Assurance Model Standards provide that where an employee resigns when an investigation is underway and the disciplinary process ceases, the investigation should continue. In these circumstances the outcome determined following the investigation should be recorded and the action taken recorded as “Staff member resigned before an action could be determined or applied”.