What happens in a workplace investigation in New Zealand?

Last updated: 5 September 2026 | Written by Andy Bell, Partner, Lane Neave

A workplace investigation in New Zealand is a fact-finding process an employer runs before deciding whether an allegation against an employee is substantiated. The employer must tell the employee what is alleged, share the evidence it is relying on, give the employee a reasonable opportunity to respond with a support person or representative present, and genuinely consider that response before making any decision. The legal benchmark is section 103A of the Employment Relations Act 2000: what a fair and reasonable employer could have done in all the circumstances.

There is no fixed statutory procedure. What the law requires is a process that is fair in substance. Most independent investigations take two to four weeks, although serious or multi-witness matters can run for months. An employee can be suspended on full pay while the investigation runs, but only after being consulted about the proposed suspension. The findings are made on the balance of probabilities and go to a decision maker, who must then run a separate disciplinary process before any outcome is imposed.

Since 21 February 2026, the Employment Relations Amendment Act 2026 has changed how process errors are treated. A dismissal can no longer be found unjustified solely because of defects in the process if those defects did not result in the employee being treated unfairly. That shifts the focus from technical compliance to whether the person was actually treated fairly. This article explains what that looks like in practice, for the person being investigated and for the employer running it.

When does an employer need to run an investigation?

An employer must investigate before taking disciplinary action for alleged misconduct. Section 103A(3)(a) of the Employment Relations Act 2000 requires the Employment Relations Authority to consider whether the employer sufficiently investigated the allegations before acting, having regard to the resources available to the employer.

That last phrase matters. A national organisation with an HR team is held to a higher standard than a café with four staff. A small employer can run a proportionate, simple process. A large employer that cuts corners will struggle to show it did what a fair and reasonable employer of its size could have done.

Complaints of bullying, harassment, discrimination, dishonesty and serious misconduct usually require a formal investigation, unless the facts are admitted or the complaint is minor enough to be resolved informally with everyone’s agreement. Minor performance issues usually do not, although a further slip by someone already on a final warning does need a proper process before any decision. The question is whether the allegation, if substantiated, could lead to a warning, demotion or dismissal. If it could, the employer needs to investigate properly.

Who should carry out the investigation?

The law does not require an external investigator. An internal investigation is acceptable if the investigator is genuinely separate from the complaint and the decision. Problems arise when the same manager receives the complaint, investigates it, and then decides the outcome. The Employment Court and the Authority have repeatedly criticised that combination because it invites predetermination.

In Gumbeze v Chief Executive of Oranga Tamariki [2024] NZEmpC 133, the Employment Court found an element of predetermination where a decision maker had prior involvement in the matter and a preliminary letter to the employee read like a draft dismissal letter. The employee was awarded $79,015 in lost wages and $35,000 in compensation. The Court of Appeal granted leave to appeal that decision in 2025 and the appeal was heard in August 2026, so the final word is still to come, but the criticism of the process is a useful warning regardless of the outcome.

In JSC v Landcorp Farming Ltd [2024] NZERA 162, the Authority confirmed that a decision maker must independently review an investigator’s report rather than rubber-stamp it. The investigator finds facts. The decision maker decides what to do about them. Those are two different jobs.

An independent investigator is sensible where the complaint is against a senior person, where accounts conflict sharply, where the allegation is sexual harassment or bullying, or where the organisation lacks anyone with the skill and distance to run the process credibly. External investigators who are not practising lawyers must hold a private investigator licence under the Private Security Personnel and Private Investigators Act 2010. Section 22 of that Act exempts lawyers holding a current practising certificate. Check the licence before engaging anyone else.

What are my rights if I am being investigated?

The employee under investigation is entitled to a fair process. In New Zealand that means, at a minimum:

• Written notice of the allegations: the employer must set out what is alleged in enough detail that the employee understands the case against them. Vague references to “concerns about your conduct” are not enough.
• Access to the evidence: section 4(1A)(c) of the Employment Relations Act 2000 requires an employer to give an employee access to relevant information before making a decision that could adversely affect their continued employment, and an opportunity to comment on it. Section 4(1B) allows limited withholding: where a statute requires confidentiality, where disclosure would breach a third party’s privacy, or where it would cause unreasonable commercial prejudice. Outside those exceptions, the material the employer relies on must be put to the employee. An employer cannot decide on evidence the employee has never seen.
• A support person or representative: the employee can bring a lawyer, union representative, advocate, friend or family member to any investigation meeting.
• Reasonable time to prepare: Employment New Zealand suggests two to three working days‘ notice of a meeting as a guide. Complex allegations warrant longer.
• A genuine opportunity to respond: the employee can put their side, suggest witnesses who should be spoken to, and challenge the evidence.
• The terms of reference: the employee should be told the scope of the investigation and who is running it. In Gumbeze, the Court criticised the failure to consult on the terms of reference.
• Privacy rights: under the Privacy Act 2020, an employee can request the personal information the employer holds about them, including investigation material. The employer must respond within 20 working days, subject to limited withholding grounds such as evaluative material supplied in confidence.

An employee does not have a right to cross-examine witnesses, to see every document in the employer’s possession, or to dictate the process. The test is fairness, not a court trial.

Can I be suspended during a workplace investigation?

Yes, but only in limited circumstances and only after a fair process. Employment New Zealand’s guidance is that suspension is appropriate where the employee’s presence could compromise the investigation, cause further issues, or create a health and safety risk. The employer should propose suspension, explain the reasons, and hear the employee’s response before deciding, unless there is immediate danger.

Suspension should be on full pay unless the employment agreement expressly allows unpaid suspension. Unpaid suspension without that contractual right is an unlawful deduction from wages under the Wages Protection Act 1983 as well as a likely unjustified disadvantage. In Hall v Dionex Pty Ltd [2015] NZEmpC 29, the Employment Court held that without an express contractual power, suspension is generally only justified in unusual cases. Suspension is not a punishment and it should not drag on. An employee left suspended for months while nothing happens has a strong unjustified disadvantage claim.

If you are suspended, you remain an employee. You keep your pay, your leave accrues, and you are entitled to updates on progress. Read our guide on what to do if you are suspended at work for the practical steps.

What does a fair investigation process look like for an employer?

From the employer’s side, a defensible investigation follows a consistent path:

1. Set terms of reference. Define the allegations, the scope, the investigator and the expected timeframe. Share them with the employee and invite comment.
2. Decide on suspension separately. Consult before suspending. Confirm any suspension in writing, on full pay, with a review date.
3. Put the allegations and evidence to the employee in writing. Attach the complaint, statements and documents the investigator is relying on, redacted only where necessary to protect a third party.
4. Interview witnesses properly. Use open questions. Do not lead. Record interviews with consent, or at least have each witness sign their statement as accurate. Keep all notes, because they can be requested.
5. Interview the employee last, with a support person present. Put contradictions to them fairly. Invite them to nominate further witnesses.
6. Prepare a findings report for the decision maker. In practice, findings are expressed on the balance of probabilities: is it more likely than not that the conduct occurred? The legal test remains whether a fair and reasonable employer could have reached that conclusion on the material available, and the more serious the allegation, the more cogent the evidence needs to be before a fair and reasonable employer would act on it. An employer is running an inquiry, not a trial.
7. Give the employee the findings before any disciplinary decision. The employee must be able to comment on the findings and meet the decision maker before an outcome is decided. The investigation and the disciplinary process are two stages, not one.

“The most common mistake I see is an employer who has already decided the outcome before the first interview. It shows in the correspondence, in the questions, and in the speed. Since the 2026 amendments, a genuine procedural slip in an otherwise fair process will usually be forgiven. Predetermination will not, because it is not a defect in the process. It is the absence of one.” Andy Bell, Partner, Lane Neave (Legal 500 Asia Pacific Recommended Lawyer)

What changed under the Employment Relations Amendment Act 2026?

Three changes matter for investigations.

First, new section 103A(5) provides that the Authority or Court must not find a dismissal unjustified solely because of defects in the process if those defects did not result in the employee being treated unfairly. The old law only excused “minor” defects. Now any defect can be excused if it caused no actual unfairness. An employer that forgot to attach one document, but put its substance to the employee in the meeting, is in a far better position than before.

Second, new section 103A(3)(e) requires the Authority to consider whether the employee obstructed the employer from taking the steps a fair and reasonable employer would take. An employee who refuses to attend meetings or will not engage with the allegations will find it much harder to complain that the employer failed to hear from them. Obstruction is a factor to be weighed, not an automatic answer, and an employer still has to make reasonable efforts to hear an employee who is genuinely unwell.

Third, sections 123B and 123C rewire remedies around the employee’s own conduct. If the employee’s conduct contributed to the situation and amounted to serious misconduct, no remedy at all is available, even if the employer’s process was poor. If the contributing conduct fell short of serious misconduct, reinstatement and compensation for humiliation are off the table and lost wages can be reduced by up to 100 percent under section 124.

The practical effect is that an investigation which gets the facts right now carries far more weight than one which gets the paperwork right. The substance of what the employee did, established fairly, is what the Authority will look at first.

How long does a workplace investigation take?

Straightforward matters with one or two witnesses can be completed in one to two weeks. Independent investigations into bullying or harassment typically take two to four weeks. Complex matters with multiple complainants, document review or sick leave interruptions can run for two to three months.

Delay cuts both ways. An employer that takes six months to investigate a single allegation risks an unjustified disadvantage claim for the stress and uncertainty caused. An employee who is genuinely unwell can ask for the process to pause, but should provide medical evidence and stay in communication.

What happens after the investigation?

The investigator’s report goes to the decision maker. If allegations are not substantiated, the employee should be told in writing, any suspension lifted, and a plan made for their return. If allegations are substantiated, the decision maker starts the disciplinary stage: a written notice of the proposed outcome, a meeting where the employee can respond, and then a decision. Only after that can a warning, demotion or dismissal be imposed. Our article on how to dismiss an employee for serious misconduct covers that stage.

If the employee believes the process was unfair, they have 90 days from the date of the action to raise a personal grievance under section 114 of the Act, or 12 months where the grievance is for sexual harassment. Demand for the Authority keeps growing. It received 2,745 applications in 2024, nearly 30 percent more than in 2023, and 3,070 in 2025 according to its 2025 annual report, with unjustified dismissal the most common claim at 1,680. Compensation awards in 2025 ranged from $1,000 to $105,000, and around 40 percent were $20,000 or less.

Two other 2026 changes are worth knowing before an investigation starts. Employees whose total remuneration is $200,000 or more can no longer bring a personal grievance for unjustified dismissal (existing agreements are protected until 21 February 2027), which changes the strategic picture for senior employees under investigation. And a worker who meets the new five-part specified contractor test in section 6 of the Act is not an employee at all, so the section 103A process does not apply. Our article on what changed in the Employment Relations Amendment Act 2026 covers both.

Key takeaways

• For employees: engage with the process, bring a support person, ask for the evidence in writing, respond in writing, and keep your own notes of every meeting. Do not resign in the middle of an investigation without advice. Resigning usually ends your ability to challenge the outcome.
• For employers: separate the investigator from the decision maker, consult before suspending, disclose the evidence, and make findings on the facts. Since February 2026 the Authority will look past minor process slips, but it will not look past predetermination or an outcome that the facts do not support.
• For both: get advice early. Most investigation disputes are decided by what happened in the first two weeks.

Frequently asked questions

Can I be suspended without pay during a workplace investigation in NZ?

Only if your employment agreement expressly allows unpaid suspension, and even then the employer must consult you first. The default position is suspension on full pay. Unpaid suspension without a contractual right is an unlawful deduction from wages and an unjustified disadvantage.

Do I have to attend an investigation meeting, and can I bring a lawyer?

You should attend. Since 2026, section 103A(3)(e) of the Employment Relations Act 2000 requires the Authority to take into account whether you obstructed the employer’s process. You are entitled to bring a lawyer, union representative, advocate or support person to any meeting.

Am I entitled to see the evidence and witness statements against me?

Generally, yes. Section 4(1A)(c) of the Act requires the employer to give you access to information relevant to a decision that could affect your continued employment. Section 4(1B) allows material to be withheld where a statute requires confidentiality, where a third party’s privacy would be breached, or to avoid unreasonable commercial prejudice, so statements may be redacted. The substance of what is alleged must still be put to you.

How long can a workplace investigation take?

Most take two to four weeks. Complex matters can take several months. An employer must move at a reasonable pace and keep you informed. Unreasonable delay can itself be grounds for a personal grievance.

What happens if the process was unfair but the outcome was right?

Under section 103A(5), as amended in 2026, a dismissal is not unjustified solely because of process defects that did not cause actual unfairness. If your own conduct contributed to the situation and amounted to serious misconduct, section 123B removes all remedies regardless of the employer’s process errors.

For employers: workplace investigation services. For employees: employment law services for employees.

Andy Bell is a Partner at Lane Neave, an employment lawyer acting for employers and employees in Wellington, who also conducts independent workplace investigations for businesses, schools and charities. He is a Recommended Lawyer in the Legal 500 Asia Pacific and a Recommended Employment Lawyer in Doyle’s Guide 2026.

Last updated: 5 September 2026