Workplace Investigations: When Are They Necessary?

Maintaining a safe and respectful work environment is crucial for both employees and employers. In Ontario, workplace investigations play a vital role in addressing concerns, allegations, and violations within the workplace.

This article aims to shed light on workplace investigations, outlining what they entail, the rights and responsibilities of employees, and the duties and obligations of employers in Ontario.

What are Workplace Investigations?

Workplace investigations are formal processes conducted by employers to gather facts and evidence when there are complaints or allegations of misconduct, harassment, discrimination, or other violations of employment laws or company policies. These investigations aim to ensure a fair and impartial examination of the situation, protect the rights and well-being of all parties involved, and determine the best course of action to resolve complaints.

In Ontario, employers must have policies in place regarding workplace violence and harassment, including procedures for reporting and investigating workplace complaints. This means that when an employee raises a concern, the employer must conduct a prompt investigation.

The purpose of a workplace investigation is to gather relevant information related to the complaint or incident. This can involve interviews with relevant parties, collecting documents, and preparing a report with the findings.

What Employees Should Know

Employees have the right to a safe and respectful work environment, free from harassment and discrimination.

Workplace investigations can be challenging and uncomfortable as they often involve conflicts between colleagues that are sometimes difficult to bring forward or to resolve. Accordingly, it is essential that employers ensure that all employees are treated fairly throughout the investigation process and that each complaint is investigated with:

Fairness;
Thoroughness;
Timeliness; and
Confidentiality.

As an employee, if you experience any form of mistreatment or witness inappropriate behaviour, it is important to promptly report it to the appropriate individual within your organization; such as a supervisor or human resources representative.

When participating in an ongoing investigation, you should provide factual and honest information.

Remember that retaliation for reporting concerns or participating in investigations is strictly prohibited, and employers have an obligation to protect employees from such acts.

If you are an employee who has made a complaint or is responding to an allegation, an experienced employment lawyer can help you through the investigation.

Employer’s Duties, Obligations, and Consequences

During workplace investigations, employers have specific duties and obligations. Employers have a responsibility to provide a safe and healthy work environment, promptly address concerns related to workplace violence, harassment, discrimination, and health and safety hazards.

It is highly recommended and at times required for employers to appoint a trained and neutral investigator to carry out the investigation. This ensures that the process is objective and unbiased, promoting fairness and integrity. The investigator’s role is to gather information, interview people involved, and assess the credibility of the allegations.

Workplace investigations are not optional but are a legal requirement for Ontario employers. Employers must conduct thorough and reasonable investigations to promptly address claims of harassment, discrimination and workplace violence.

Neglecting complaints of harassment and discrimination in the workplace can have serious legal consequences for employers, such as:

Applications filed under the Ontario Human Rights Code;
Consequences for violating the Occupational Health and Safety Act; and
Constructive dismissal claims.

To avoid these consequences, employers must be diligent in conducting investigations that adhere to best practices, including maintaining records, acting promptly, ensuring confidentiality, providing training, communicating findings, and maintaining a safe work environment.

Upon completion of an investigation, employers must take appropriate action based on the findings. This may include disciplinary measures, preventive measures, training, or policy revisions to prevent future incidents.

It is crucial for employers to prevent retaliation against employees who report concerns or participate in investigations, creating a supportive environment where employees feel safe to come forward without fear of adverse consequences.

By fulfilling their duties and obligations during workplace investigations, employers can demonstrate a commitment to fairness, safety, and respect. This not only mitigates legal risks but also fosters a positive work environment where employees feel heard, protected, and valued.

If you are an employer who is investigating a harassment complaint, an experienced human rights litigation lawyer can help you reduce your exposure to liability.

Workplace Investigation Process

A workplace investigation typically involves several key steps to ensure a thorough and fair process. Here are the general steps involved:

1. Receive a Complaint or Report

The investigation usually begins when an employee or a third party reports an issue or complaint to the appropriate person within the organization, such as HR, a supervisor, or a designated investigator.

2. Determine the Scope

The investigator or HR professional assesses the nature and scope of the complaint to understand the specific issues involved and the potential violations of company policies or laws.

3. Select an Investigator

An impartial investigator is appointed to conduct the investigation. This person should have the necessary training and experience to handle the particular issue.

4. Notify All Parties

All relevant parties, including the complainant, the accused, witnesses, and any other individuals involved, are informed about the investigation and their roles in the process. Confidentiality is emphasized.

5. Gather Evidence

The investigator collects relevant evidence, which may include documents, emails, security footage, and interviews with involved parties and witnesses. It’s crucial to maintain a detailed record of all evidence and interviews.

6. Interview Parties

The investigator conducts interviews with the complainant, the accused, witnesses, and any other individuals with information related to the case. These interviews should be conducted impartially and with sensitivity.

7. Review Documentation

Relevant documents, such as policies, procedures, personnel files, and any other relevant records, are reviewed to assess compliance and context.

8. Analyze Evidence

The investigator analyzes the gathered evidence and information to determine the facts of the case, evaluate the credibility of witnesses, and identify any policy or legal violations.

9. Make Findings

Based on the evidence and analysis, the investigator makes findings regarding whether there were policy violations or other wrongdoing. These findings should be documented in a report.

10. Recommendations

If policy violations or wrongdoing are found, the investigator may make recommendations for appropriate actions, such as disciplinary measures, training, or changes in workplace policies.

11. Report and Conclusion

A final investigation report is prepared, summarizing the findings, recommendations, and any corrective actions to be taken. This report is usually provided to the appropriate parties, including HR and management.

12. Take Action

Based on the findings and recommendations, the organization takes appropriate actions, which may include disciplinary actions, conflict resolution, training, or policy revisions.

13. Follow-Up

In some cases, follow-up may be necessary to ensure that the recommended actions are implemented and that the workplace remains free from similar issues.

Throughout the entire process, it’s essential to maintain confidentiality to the extent possible, ensure fairness, and comply with applicable laws and regulations. Additionally, organizations should keep thorough records of the investigation for legal and compliance purposes.

Investigating Misconduct

One of the more common applications of a workplace investigation is to establish the facts in situations involving severe misconduct, such as workplace violence, sexual harassment, or theft. In these instances, conducting an impartial investigation of the complaint and acting on the conclusions can help settle the issue and convey that the organization takes the concern seriously. It can also help limit the company’s vicarious liability should the alleged misconduct lead to legal proceedings.

While an employer might be wondering when an investigation should be conducted—sometime statute will provide no choice, and will mandate employers investigate certain complaints. To make sure they are complying with the law, employers must know what those circumstances are and whether their employee’s complaint falls within a circumstance where an investigation is necessary.

Flawed Investigations

Although employers may have good intentions in conducting their investigations, a flawed investigation can be costly.

Choosing an investigator who is ill-equipped, has a personal relationship with the parties, asks inappropriate questions, does not permit the interviewee to respond, ignores confidentiality, or formulates their conclusions incorrectly can lead to additional damages should the investigation lead to an employee’s wrongful dismissal.

On the same side of the coin, using a shoddy investigation as a means of justify a dismissal can also land an employer in trouble.

The choice of investigator, whether internal staff or an independent third party, depends on the nature of the situation. Some situations will require an independent third party where using internal staff will create a conflict of interest or where bias may occur.

Regardless of who is conducting the investigation, for the results to be of any use, ensure that the investigation is thorough, well-documented, and objective. Additionally, employers should ensure steps are taken to protect the privacy and confidentiality of those involved.

Conclusion

Workplace investigations are a necessary and critical process in maintaining a safe and respectful work environment. For employees, it is essential to understand their rights and responsibilities, including the right to report concerns and participate in investigations without fear of retaliation. Employers, on the other hand, have specific duties and obligations when it comes to conducting workplace investigations.

Employers must ensure that investigations are conducted promptly, fairly, and impartially. This includes adhering to principles of fairness, thoroughness, timeliness, and confidentiality. By conducting investigations in a diligent and professional manner, employers can address complaints, gather relevant information, and make informed decisions to resolve workplace issues.

Failing to address complaints of harassment, discrimination, or misconduct can result in severe legal consequences, including legal proceedings before the Ontario Human Rights Tribunal or constructive dismissal claims. It can also damage a company’s reputation, harm employee morale, and result in significant legal expenses.

Employers should prioritize creating a safe and healthy work environment by promptly addressing concerns related to workplace violence, harassment, discrimination, and health and safety hazards. Taking corrective actions based on investigation findings is crucial to prevent future incidents and ensure a respectful workplace culture.

Contact Achkar Law

Looking for neutral and unbiased workplace investigation services? Achkar Law offers professional investigation solutions to ensure a fair and thorough process for all parties. Our team is dedicated to upholding the highest standards of integrity and confidentiality. For more information or to engage our workplace investigation services, please contact us. We’re committed to delivering clarity and resolution.

Contact Achkar Law for Unbiased Workplace Investigation Services — Your partners in fostering a respectful work environment.

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