Workplace Investigations: When to Investigate & Best Practices

October 10, 2024, by Brooke Wilkinson & Leigh Lauwaert, Senior HR Consultants | Work Environment and Policies

We frequently receive complaints from our clients about employee grievances towards colleagues or managers, including comments, actions, behaviours, or other issues that have had a negative impact. The employer is often unsure about the appropriate course of action.

Employee complaints impact every organization. Workplace investigations are often triggered by an employee’s verbal or written complaint, including allegations of workplace harassment. Even if no complaint comes forward, an employer’s duty to investigate is also triggered if they were aware or ought to be aware that an incident occurred.

Under the Ontario Occupational Health and Safety Act (OHSA), workplace harassment is defined as making vexatious comments or conduct against a worker in a workplace that is known or ought to reasonably be known to be unwelcome.

An employer’s duty to investigate has no time limit. For example, if a complaint arises from a former employee and the allegations are tied to an incident that occurred during employment, the employer has a duty to investigate.

Investigations are conducted for the following purposes:

• To resolve a conflict or complaint quickly, fairly and without reprisal (while promoting open and honest communication and offering a safe environment for addressing differences between parties).

• When the exact nature of the allegations is unclear, and more information is needed to determine the appropriate next steps.

• When there is an incident or complaint of harassment (it is an offence under the Occupational Health & Safety Act if you do not comply).

An employer’s failure to investigate workplace harassment complaints can result in the Ministry of Labour mandating an investigation and imposing penalties.

The type of investigation conducted must be suitable based on the circumstances of the allegation(s). There are times when an internal investigation is sufficient and others when it is best to hire an external investigator. An HR Professional can assist with making this determination.

When a complaint has been raised, critical steps in conducting a workplace investigation include:

• Submitting a formal complaint (verbal or written) and any supporting documentation

• Interviewing the complainant, respondent and relevant witnesses

• reviewing any related documentation

• Making detailed notes of the investigation and maintaining files confidentially

• Preparing a detailed report of the findings. For workplace harassment incidents or complaints, include information on any corrective action taken as a result of the investigation.

Below are best practices when conducting an investigation:

• It is not an interrogation. Investigations can be stressful and uncomfortable for participants. Be mindful of this. Make the environment comfortable. Establish rapport and trust. Take breaks.

• Conduct investigations promptly. Investigations should be conducted in a timely and thorough manner. The Ministry of Labour’s guideline for completion is 90 days, albeit circumstance-dependent.

• Select the right investigator. Investigators should not be under the alleged harasser’s control or influence. If there are allegations of criminal activity, it is best to engage an external investigator.

• Provide a summary of the allegations. Respondents must receive a summary of the allegations. Allow sufficient time for the respondent to review the allegations before participating in an investigation interview.

• Witness interviews are to corroborate information. Engage in witness interviews if there is information that may be conflicting or for data the complainant and respondent have not corroborated. There is often little value in a character witness. Before meeting with a witness, ask yourself, ‘Do they have valuable information for me to make a finding?’

• Discuss confidentiality with all participants. As a best practice, all participants (including support people) must execute a confidentiality agreement before participating.

• Provide findings for every allegation. This should be documented in a comprehensive report. For workplace harassment investigations, the complainant and the respondent must receive a summary of the findings (not the actual report).

• Provide training to employees. Under the Occupational Health & Safety Act, an employer must provide employees with information, instruction, and training on workplace discrimination, violence, harassment, and sexual harassment.

• Review your Workplace Harassment Program & Policy. In conjunction with the H&S Committee / Representative, review your program as often as necessary, at least annually. Reassess the risks of workplace violence as often as necessary to ensure that your policies and programs continue to protect workers from harassment and workplace violence.

As an employer, if you are unsure about an allegation under the Ontario Occupational Health and Safety Act (OHSA) workplace harassment definition, please contact a certified HR professional.

Need help or have questions? HRAC can assist you with any of the following:

• Policy Development: Conflict Resolution and/or Respect in the Workplace

• Workplace Harassment Program Development

• Training on Workplace Harassment and Violence Prevention for managers and employees

• Workplace Harassment Investigations