What are workplace investigations, and why are they necessary?
Bushra Hussain
In Ontario, the Occupational Health and Safety Act mandates that employers address workplace safety, including harassment and violence.
Our firm regularly receives questions from employers on how to appropriately and legally address these situations.
Why workplace investigations?
Depending on the nature of the situation and allegations, a neutral third party workplace investigation is required. In these situations, a workplace investigation is not just a legal obligation, they are also essential for maintaining trust, safety, and productivity within an organization.
When allegations of harassment or violence are made within a workplace a prompt and proper investigation is vital to:
- Protect employee rights: ensures that all employees are treated fairly and that their concerns are taken seriously.
- Mitigate legal risks: proper investigations can prevent or defend against potential lawsuits, grievances, or human rights complaints.
- Promote a safe workplace: a thorough investigation helps to identify and address any underlying issues, fostering a safer and more positive work environment.
When should a workplace investigation be conducted?
An investigation should be conducted whenever a complaint of harassment, discrimination, violence, or any other serious workplace misconduct is made.
Quick action is critical to maintaining credibility and addressing issues before they escalate.
The role of the "instructing client"
In workplace investigations, the “instructing client” plays a crucial role. The instructing client is typically a representative of the employer, such as a human resources professional, manager, or legal counsel, who oversees and provides guidance throughout the investigation process.
The instructing client is responsible for:
- Engaging the investigator: selecting an impartial and qualified investigator, whether internal or external, to ensure the investigation is conducted fairly and professionally.
- Defining the scope: clearly defining the scope and parameters of the investigation, including timelines, issues to be examined, and parties to be interviewed.
- Supporting the investigation: providing the investigator with access to necessary documents, policies, and witnesses, while also ensuring that the investigator has the independence to conduct the investigation without undue influence.
- Receiving the report: the instructing client typically receives the final investigation report and is responsible for determining the appropriate next steps based on the findings, including disciplinary actions or policy changes.
Are workplace investigations confidential?
Maintaining confidentiality during a workplace investigation is crucial to protecting the integrity of the process and safeguarding the rights of those involved. Confidentiality helps to protect the purity of an investigation, protects the privacy of both employees and employers, promotes honesty during the interview process, and ensures compliance with legal obligations throughout a workplace investigation.
Are participants protected from reprisal?
Participants in workplace investigations, including complainants, respondents, and witnesses, are protected from reprisals under Canadian Law.
In Ontario, the Ontario Human Rights Code “the Code” explicitly prohibits retaliation against individuals who file complaints or participate in investigations under the Code. The Occupational Health and Safety Act (“OHSA”) and Employment Standards Act, 2000 (“ESA”) offer similar protections to ensure that employees can engage in investigations without fear of punitive actions, such as terminations, demotions, or financial penalties.
Employers found guilty of engaging in reprisals could face legal consequences, including orders to reinstate employees, compensate them for lost wages, or other corrective measures. These protections are vital to maintaining the integrity of the investigation process, as they encourage employees to speak up without fear of negative repercussions.
Need to initiate a workplace investigation?
Workplace investigations in Ontario are a vital tool for maintaining a fair and safe work environment. By following a structured approach and adhering to legal requirements, including confidentiality, protection from reprisals—employers can properly address misconduct, protect employee rights, and minimize legal risks. Ensuring that investigations are handled professionally and impartially is key to having a positive workplace culture where all employees feel valued, respected and safe.
