Workplace Investigations are often shrouded in mystery for many people and can cause a lot of stress to both employers and employees alike. Generally, workplace investigations are utilized when an employee has made a complaint about harassment, bullying or discrimination in the workplace. An investigation may also be utilized when there has been accusation of serious misconduct as well. Many people do not know what to expect when a workplace investigation occurs, how they should be conducted, what the results of an investigation should be and how those findings should be used in the workplace. This blog will answer some of those questions.

Ontario’s Statutory Framework for Workplace Investigations

In Ontario, all employers have a statutory duty to investigate a complaint by their employee that relates to discrimination and harassment. Under Ontario’s Occupational Health and Safety Act (“OHSA”) an employer shall ensure that an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances 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.

Further, under Ontario’s Human Rights 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.

How a Workplace Investigation is Generally Conducted

A workplace investigation is usually conducted by the employer, or the employer may hire an independent third party to conduct the investigation. For example, 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, 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.

The investigation must also begin in a timely manner after a complaint is received. The more serious the complaint, the more likely it is that the employer should act quickly to investigate the complaint.

Regardless of who conducts it (the employer or a third party), every investigation contains two basic parts.  The first is an information-gathering phase and the second is the report or findings. In the information-gathering phase, the investigator may use a variety of tools to obtain information such as in-person interviews with witnesses or the review of any relevant documentary materials or video, or auditory evidence related to the incident. They should speak to the complainant, the respondent or other people involved in the complaint and any witnesses to the incident and record their answers to questions that the investigator asks.

In the next stage, typically the workplace investigator will formulate a report to the employer related to the complaint and the results of the information-gathering phase. The report will contain a summary of the complaint and a summary of the findings of the investigator. Sometimes (though not always advisable) a workplace investigator would present recommendations to the employer (such as whether to discipline a particular employee or if there are certain corrective actions the employer should undertake to do to make their workplaces safer for employees) at the conclusion of the report. Many workplace investigators, however, refrain from providing recommendations to the employer as such a step could be construed by those involved as providing legal advice, which would not be appropriate in certain circumstances.

Some Issues that may Complicate a Workplace Investigation

Here are three common issues that often act as complicating issues in a workplace investigation.

1. The employer does not have a workplace policy relating to workplace investigations and harassment.

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 ensure that the employer has such policies can lead to complications when there is a complaint made to the employer related to issues like workplace harassment. For example, failing to have a workplace policy can lead to delays in the 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 investigation is not conducted appropriately.

Failing to properly investigate a complaint can significantly complicate and compromise the integrity of the investigation. For example, a common way that an investigation is not conducted properly is by failing to ensure that the finding or conclusion is not communicated to the complainant or the employer fails to properly implement the any corrective actions that the workplace investigator may set out to protect the complainant or employees of the employer in general.

Similarly to number #1 above, when an investigation is not conducted properly, the employer’s litigation risk increases. For example, when an employer fails to conduct an investigation properly relating to workplace harassment, may lead to employee to claim against the employer relating to constructive dismissal. Once the claim for constructive dismissal has been made then the employee will generally claim common law and statutory damages in a wrongful dismissal suit for termination and severance pay. Depending on the circumstances, the employee may also be entitled to punitive and general damages as well.

3. There is retaliatory behaviour or an act of reprisal because of the investigation or report against the employee who made the complaint.

A reprisal in employment law in Ontario occurs when the employer intimidates, threatens and/or terminates or penalizes their employee because the employee asserted or attempted to assert their rights under OHSA such as having made a complaint related incidents of workplace harassment. Reprisals can take many forms and encompass a wide range of differing behaviours and actions that may also range in intensity.

Under section 50 of OHSA, employees are protected from reprisals. The employer is prohibited from threatening to terminate the employee, suspend or discipline the employee or threaten to do so. They should not bully or coerce the employee because of their complaint.

Ontario’s Code also prohibits reprisals against employees by employers in the workplace. Specifically, section 8 of the Code states that every person has a right to claim and enforce their rights under the Code, to institute and participate in proceedings under the Code and to refuse to infringe a right of another person under the Code, without reprisal or threat of reprisal for so doing. To remind our readers, the Code makes it unlawful to discriminate in the employment law context (and other contexts) against individuals based on an individual’s age, race, gender, disability, creed, etc.

If there is an act of reprisal due to the investigation and complaint, this can greatly complicate the process of a workplace investigation. Further, the employee who was subjected to a reprisal may retain their own lawyer and may claim that they have been constructively dismissed by their employer. Again, as set out above, if constructive dismissal is alleged, the employee will claim termination and severance pay in addition to other possible damages stemming from the investigation and possible harassment.

How Zeilikman Law Can Help

We have information on our website related to workplace harassment and workplace investigations. For example, please review:

• I Am Experiencing a Toxic Work Environment. What Should I Do?
• Harassment and Bullying in the Workplace?
• Investigations in an Ontario Workplace

If you are an employee or an employer and have questions relating to workplace investigations, it is important that you contact Zeilikman Law to schedule a confidential consultation. Our employment law lawyers can guide you through the process of a workplace investigation and provide legal advice that is suited for your own specific needs. We can be reached online here.