Workplace investigations are the process of an investigator searching out and attempting to confirm facts in response to a workplace incident or complaint, then making a factual and/or legal determination as to whether certain actions under investigation meets a predefined standard – for example, did harassment occur or not. Each workplace investigation is highly nuanced, potentially subject to a myriad of variant legislations, and requires an expert approach to ensure it is completed to the highest possible standards.
The goal of a proper workplace investigation is two-fold:
- Do justice to the workplace issue under investigation; and,
- Withstand scrutiny should an employer’s decisions stemming from the result of the investigation be challenged in the future.
As noted above, each investigation is different, and may be prompted by different legislation. In short, employers most commonly complete workplace investigations because they are required to by law. In Ontario, most investigations are undertaken pursuant to an employer’s strict duty to conduct harassment investigations under the Occupational Health and Safety Act (“OHSA”). In addition to the OHSA, workplace investigations are also commonly done pursuant to an employer’s requirement to do same, under Ontario’s Human Rights Code, the Canada Labour Code, the Police Services Act, the Public Service Employment Act, and the Public Servants Disclosure Protection Act, just to name a few.
Although highly tailored to each case, a workplace investigator will generally take the following steps during an investigation:
- Review the complaint and any written responses to same;
- Interview the complainant;
- Interview the Respondent (usually the accused);
- Gather and review all pertinent documents;
- Interview all pertinent witnesses;
- Re-interview the complainant and respondent if necessary;
- Make credibility findings;
- Make findings of fact, on a balance of probabilities;
- Make legal findings as to whether alleged actions met a certain standard, on a balance of probabilities;
- Draft a report outlining all the above; and
- Inform the complainant and respondent of the outcome of the investigation and any discipline as the result of same.
Workplace investigations can and are done internally by employers, through their Human Resources department. However, these investigations are often plagued with legal mistakes and pitfalls that are far less likely to occur if a trained workplace investigator is hired. Workplace investigations require an especially high-level of care and skill if completed as part of the significant discipline of an employee and/or the just cause termination of their employment. If a workplace investigation is not completed properly, an employer can face steep fines and/or costly lawsuits.
Our lawyers have significant experience assisting both employees and employers going through workplace investigations within each statutory framework mentioned above, amongst others.
If you are an employee facing a workplace investigation, or an employer requiring a workplace investigator, or someone who simply needs some proactive advice in this area of law, feel free to contact our Employment Law group.
