Few employees or employers fully understand what is necessary for a workplace investigation to be valid and procedurally fair when an investigation occurs in the workplace. To be clear, in most cases, workplace investigations are a tool that employers use to determine whether or not a complaint relating to misconduct like harassment, discrimination or bullying is accurate. Misconduct may also include issues like theft, fraud or breaches of the employer’s workplace policies that may involve issues of confidentiality, privacy or conflicts of interest.
This blog looks into several key elements that are necessary for procedural fairness with respect to workplace investigations in Ontario. We look at the legislative requirements of workplace investigations, the role of the investigator, confidentiality, how promptly an investigation should be conducted, whether an employee should be given notice of the investigation and whether an employee should also be given the results of the investigation.
1. The Employer Should Follow Legislative Requirements and their Own Internal Policies.
There are two main pieces of legislation that frame the requirement for workplace investigations. First, under Ontario’s Occupational Health and Safety Act, 1990 (“OHSA”) an employer shall ensure that a workplace investigation is conducted into incidents and complaints of workplace harassment and workplace safety. Further the OHSA sets out that the investigation is appropriate in the circumstances of the matter at hand and that the employee who has allegedly experienced workplace harassment and the alleged harasser, if he or she is an employee of the employer, are informed in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation.
Secondly, under Ontario’s Human Rights Code, 1990 (“Code”) the employer has a duty to protect their employees from workplace discrimination or harassment based on certain protected grounds including race, sexual orientation, gender or disability. For more information about the Code and human rights in the workplace, we suggest you read Our 2026 Guide to Human Rights in Ontario Workplaces.
Further, employers should have their own internal policies relating to what can trigger a workplace investigation and how an investigation will be conducted. For example, it is mandated by the OHSA that employers should have workplace policies in place that deal with workplace harassment, bullying and discrimination, workplace safety and misconduct. These policies should be written and available to employees and include information relating to how to report or make complaints related to these issues and how the employer will investigate those complaints once received.
Failing to have a workplace policy can lead to failures in terms of procedural fairness including delays in the workplace investigation, bias in the investigation and inappropriate reporting of the investigation and failing to implement any necessary corrective outcomes to keep employees safe. This will inevitably lead to increase in the employer’s risk of litigation related to these issues and potentially even involvement of Ontario’s Ministry of Labour.
2. The Investigator Should be Neutral to the Dispute or Claim of Misconduct.
A workplace investigation is usually conducted by the employer. However, the employer may hire an independent third party to conduct a workplace investigation as well. However, in all circumstances, the investigator should remain impartial, should not be directly involved in the incident or subject matter of the complaint and should know and understand the employer’s workplace policies with respect to these issues.
In cases where the employer conducts the workplace investigation, it is common that a manager or a representative from the employer’s human resources department is the person who conducts the workplace investigation. However, employers need to be aware of certain issues that may arise when not using an outside third party as an investigator. For example, employers who deeply care about their business tend to be predisposed towards a certain outcome or result of the investigation without keeping an open mind. This is understandable because they would often have a “hunch” about a particular employee’s misconduct but, in legal and ethical terms, that is not enough.
Failing to maintain neutrality can often lead to the employer increasing their risk of litigation as result of the workplace investigations not being procedurally fair. The employee may claim that the investigation was biased and that they were therefore the subject of wrongful dismissal.
3. The Workplace Investigation Should be Confidential.
Workplace investigations should be kept confidential between the parties as much as possible, and the facts related to the investigation should not become gossip or common knowledge in the workplace. This means that the facts related to the workplace investigation must be kept private between the parties unless disclosure is necessary to conduct the workplace investigation, take corrective action, protect other employees or otherwise as required by law. For example, certain facts or information must necessarily be disclosed to investigate the complaint such as obtaining witnesses who may have information related to the complaint. However, witnesses should only be provided enough relevant particulars to allow them to provide information about the facts related to a complaint that they may have been involved in so that they can function as a witness.
Confidentiality does not mean that the approach is that the disclosure of information related to the workplace investigation should be complete disclosure to all involved or zero disclosure. Confidentiality means that information disclosed during the course of workplace investigations should be catered to specific needs at hand based on the particulars of the workplace investigation itself.
4. The Workplace Investigation Should be Conducted Promptly.
A workplace investigation must begin in a timely manner, soon after a complaint is received by the employer. The more serious the complaint is, the more likely it is that the employer should act quickly to investigate the complaint. However, timelines may be subject to change depending on circumstances and nature of the complaint. For example, an employer may want to retain an independent third-party investigator in order to conduct the workplace investigation causing a brief delay in starting the workplace investigation in comparison to the employer simply conducting the workplace investigation itself.
Another issue is that the complexity of the workplace investigation itself may lead to necessary delays and that “promptness” may not necessarily mean a rushed investigative process. For example, there may be multiple witnesses or substantial documentation that needs to be reviewed. As such, a thorough review of the evidence with respect to a workplace investigation may necessitate some time in order to be fair and accurate.
5. The Employee Should be Given Notice of the Investigation, What the Investigation is About and The Employee Should be Allowed to Respond.
The employee who is responding to a complaint and the subject of a workplace investigation must be given information related to the allegations of the complaint and an opportunity to respond to those allegations. This means that the employee who is the subject of the complaint and the workplace investigation should receive a written copy of the details of the complaint including dates, times, facts related to the complaint and evidence (such as documents, emails, reports…etc.) that will be used in the workplace investigation. Any employer who forces an employee to respond to vague or unclear allegations related to workplace investigation will violate procedure fairness.
Further, an employee should be allowed the opportunity to respond to those complaints as part of the workplace investigative process. The employee must be allowed to provide their own evidence and perhaps even their own witnesses if they have them. Failing to allow the employee this opportunity would violate the procedure fairness of the investigation.
6. The Employee Should be Given the Results of the Workplace Investigation.
In cases involving workplace harassment, it is a statutory requirement under the OHSA that the employer must provide a written summary of the result of the workplace investigation and what corrective measures will be taken (if any) to the employee who was the subject of the complaint. However, an employee is not entitled to a full copy of the written investigation report per se. A written report typically contains the results of the workplace investigation, how those allegations were substantiated by the evidence that was reviewed during the course of the workplace investigation, the witnesses that were interviewed and their testimonies, etc.
How Can Zeilikman Law Help?
For both employers and employees alike, it is important to contact an employment lawyer if they have any questions or concerns related to workplace investigations. An employment lawyer can guide both parties through the investigative process to ensure that the process is procedurally fair and valid. Particularly with respect to employees who are the subject of a complaint, given the potential seriousness of results of a workplace investigation related to their job and career, we cannot stress enough the importance of approaching legal counsel to assist in navigating these often-complicated legal waters.
We have information on our website related to the topic of workplace investigations and other related employment law topics. For example, please review:
Zeilikman Law can be contacted at (905) 417-2227 or online here to schedule your own confidential consultation with one of our employment lawyers.
