This blog is the first in a three-part series that will examine employers’ obligations with respect to conducting workplace investigations, and outline some proactive strategies that will aid employers in doing so. Part 1 will define workplace investigations, and will examine when they should be conducted, why they are necessary, and what the consequences are of not investigating appropriately. Part 2 will detail the three key stages of the workplace investigation. Finally, Part 3 will examine administrative suspensions in the context of workplace investigations.
What is a workplace investigation?
A workplace investigation is a fact-finding mission in which the investigator collects the relevant information related to a specific complaint or incident. Not every investigation will be the same, even if they are all conducted by or for the same employer. The content of an appropriate investigation will depend on the nature and severity of the complaint or incident, and on the realities of each particular workplace. The investigator will interview relevant parties, collect documents, and distill his or her factual conclusions into a report, which is provided to the decision-maker.
Why conduct a workplace investigation?
Employers should conduct workplace investigations because they may have a legal duty to do so, because there may be practical consequences for failing to do so, and because conducting a workplace investigations can help mitigate risk.
One of the sources of the legal duty to conduct workplace investigations is the Ontario Occupational Health and Safety Act (“OHSA”). As of September 8, 2016, the Bill 132 amendments to the OHSA will require employers to investigate all incidents and complaints of workplace harassment.
Employers should also conduct workplace investigations in response to incidents and complaints of discrimination or harassment under the Ontario Human Rights Code (the “Code”). The Code gives employees a right to a discrimination-free workplace, but does not impose a freestanding duty to investigate human rights incidents or complaints. While acknowledging that there is no freestanding duty to investigate, the Human Rights Tribunal consistently recommends that employers investigate human rights complaints, and has warned that failure to do so can be fatal to the defence to a human rights claim.
Additionally, employers should investigate complaints and incidents as required in order to maintain compliance with their own workplace policies.
Finally, a workplace investigation can help an employer mitigate risk. If done correctly, a workplace investigation will create a paper trail of the employer’s response to an incident or complaint and the reason for its actions (e.g., decision to discipline, terminate, or do nothing). This information is critical in defending against a human rights claim, OHSA prosecution or civil action. Furthermore, a workplace investigation gives employers the opportunity to identify and correct discrimination, harassment, or misconduct within the workplace before the situation escalates to litigation. Finally, a proper workplace investigation can limit exposure to adverse legal findings and costs.
When to conduct a workplace investigation
Employers should take particular care to conduct workplace investigations before terminating employment for cause, and in response to a complaint or incident of discrimination, harassment, or violence in the workplace. Employers should investigate as soon as possible after learning of an incident or complaint related to misconduct. The factual findings of the investigation will inform the manner in which the employer should respond.
Implications for failure to conduct an investigation, or conducting a flawed investigation
Mismanaging an investigation, or failing to conduct one at all, can have a variety of adverse effects. The employer could experience legal exposures including orders/charges under the OHSA, an application under the Code, or a civil claim. In addition to costly legal fees and damages, and employer defending against legal claims may be required to disclose documents related to the investigation or other sensitive information for scrutiny by overseeing bodies, such as the Ministry of Labour. A failure to investigate properly could also be detrimental to workplace morale and the credibility of management.
Employers will benefit from a proactive approach to conducting workplace investigations. Best practices for employers include:
- Ensuring policies and procedures are legally compliant (e.g., with Bill 132 amendments to the OHSA);
- Having regularly scheduled times to review policies and programs to remain legally compliant;
- Ensuring that the policies and programs reflect best practices identified;
- Ensuring that the policies and programs reflect the realities of workplace;
- Enforcing policies consistently and impartially;
- Communicating the rationale for policies and procedures to staff, both in terms of legal requirements and the goal of protecting all employees from discrimination, and an unsafe work environment; and
- Taking all complaints seriously and giving them due consideration.
This blog is provided as information and a summary of workplace legal issues.
This information is not intended as legal advice.