Workplace investigations can play an important role in maintaining a positive work culture in an organization. They give employees a sense of security and assurance that their complaints will be given consideration by their employer. In Ontario, employers must have established policies dealing with workplace violence and harassment that outline the procedures for reporting and investigating complaints. Furthermore, Occupational Health and Safety laws place a responsibility on employers to thoroughly investigate allegations of workplace harassment. More importantly, a workplace investigations can stop minor disputes from escalating into bigger problems that could harm the overall work atmosphere.
What is a workplace Investigation?
A workplace investigation is a process by which an employer determines whether there are grounds for terminating an employee. A workplace investigation can also be triggered by allegations that employees have committed misconduct or any action that can be sanctioned by the employer’s disciplinary measures.
Employers cannot impose disciplinary measures against their employees without first conducting a procedurally fair investigation. It is advisable to reach out to a workplace investigations lawyer in Torontoto ensure the procedures are handled accurately.
Workplace investigation requirements for Federally Regulated Employees
An emerging standard in conducting workplace investigations for federally regulated employees requires employers to ensure that a fair investigation is conducted. The Canada Labour Code defines the rights and responsibilities of workers and employers in federally regulated workplaces, including banks, airlines, most federal Crown corporations, telecommunication companies.
The specific requirements applicable to federally regulated employers are set out under the Work Place Harassment and Violence Prevention Regulations, which include:
- Protection and prevention requirements against workplace harassment and workplace violence, including an obligation for employers to implement work place harassment and violence prevention policy;
- Requiring training on work place harassment and violence;
- Process for responding to and resolving workplace complaints and reported incidents of workplace harassment and violence.
While employers in federally regulated workplaces have always been obligated to investigate an incident or complaint of workplace harassment and violence, they are now required to follow a prescribed process in conducting a workplace investigation:
Duty of the Employer
Employer has the duty to act on a timely manner. Employer must ensure that the investigation shall be completed within a period of 1 year. The one (1) year period shall include the acknowledgment of the complaint which shall be made within seven (7) days upon receipt thereof.
The employer has the duty to submit the report indicating the locations where the harassment took place, the means by which resolution processes were completed including the average time that it took to complete the resolution process for an occurrence.
Since the law encourages the resolution of the case through conciliation, the employer is required to appoint a competent “Applicable Partner” who is equipped with proper training in investigative techniques and have an understanding of both the Canada Labour Code and Canadian Human Rights Act. If the employer failed to provide the required list, the employee gets the privilege to choose.
Right to be informed and be represented
The employee is entitled to seek the assistance of a workplace investigation lawyer during the interview and to represent the employee during the entire workplace investigation. During the course of investigation, the employee shall be notified and informed on the development of the case.
Former employees likewise allowed to file a complaint involving his or her employment provided that the commencement of the action was made within the period of three (3) months from their resignation.
Workplace investigations for non-federal workplaces
In Ontario, non-federal workplaces are required to follow the guidelines provided by Occupational Health and Safety Act (OHSA).
Accordingly, the OHSA Section 32 sets out an employer’s obligation in preparing, reviewing and posting a written workplace harassment policy in a conspicuous place in the workplace.
The written workplace harassment policy includes the following measures and procedures provided below:
(a) include measures and procedures to control the risks identified in the assessment as likely to expose a worker to physical injury;
(b) include measures and procedures for summoning immediate assistance when workplace violence occurs or is likely to occur;
(c) include measures and procedures for workers to report incidents of workplace violence to the employer or supervisor;
(d) set out how the employer will investigate and deal with incidents or complaints of workplace violence; and
(e) include any prescribed elements.
Considering the nature and gravity of workplace harassment, the employer shall ensure the privacy of information. The employer must limit the disclosure of personal information unless it is reasonably necessary to protect the worker from any further injury.
What is the effect of the employer’s failure to conduct a proper workplace investigation?
A workplace investigation is generally a legal process that can require the serious and thorough application of the guidelines provided by law. Workplace investigation can be used to determine whether or not the employer has acted inappropriately, or if they have discriminated against employees.
In one workplace investigation case, the Ontario Superior Court of Justice found the employer’s failure to conduct a proper investigation into an employee’s complaint of harassment constituted constructive dismissal. Other court findings of improper workplace investigations resulted in heavy monetary fines and reputational damage to the employer.
Whether it is a non-federal workplace or not, it is always important for employers to make appropriate actions in addressing the issues of harassment in the workplace. It is likewise important for employees to understand that employer’s right to properly manage the workplace including the imposition of disciplinary measures.
Contact a Workplace Investigations Lawyer in Toronto
A workplace investigation that is conducted properly protects the interest of the company and promotes a fair and objective decision-making process. On the other hand, a mishandled workplace investigation creates potential legal and reputational risks for the company.
To ensure that the workplace investigation will be conducted in a fair and legal manner, it is important to get a service of an employment lawyer that will help you navigate the complex legal process of conducting a proper workplace investigation. To get in touch with us, simply give us a call at (647) 724-5179 or fill out our contact form.